The Supreme Court have unanimously dismissed an appeal made by a wife who was seeking to continue her application for financial relief despite her husband’s death. The parties were in proceedings when the husband died, therefore before the final determination of the wife’s application.

The wife wished to pursue her application against the husband’s estate. Unfortunately, the wife died before the appeal was heard by the court. The wife’s personal representatives appeared on behalf of the wife’s estate.

Mostyn J, in the High Court considered he was bound by a prior decision of the Court of Appeal in Sudgen v Sugden which meant that he dismissed the wife’s claim against the husband’s estate. In doing so, however, he expressed but for the decision in Sudgen v Sudgen he would have held she could continue her claim. Mostyn J considered the Court of Appeal authority was incorrect but that it was binding on him so that he was compelled dismiss the wife’s claim.

The precedent is such that an application against a deceased party could succeed provided that it is not mere hopes or contingencies. For example, it could be a sum payable for costs under an order of the court or an order already made, prior to a party’s death, to a secured provision.

Mostyn J granted the wife a “leapfrog” certificate, a certificate which enables an application to be made for leave to appeal directly from the High Court to the Supreme Court.

The Supreme Court unanimously dismissed the appeal stating that to allow proceedings to continue after the death of a party to the marriage would require a major reform to the law, which is a matter for Parliament.

The Supreme Court concluded the true construction the statutory provisions in the legislation create personal rights and obligations which can only be adjudicated between living parties.

The Ministry of Justice are to consider the judgment. The Supreme Court highlighted a need for a review of current legislation to address the limited ability to make a financial order after death.

If you are looking for legal advice or representation on divorce, our experts at Farleys are here to help. Get in touch today on 0845 287 0939, complete our online contact form, or use the chat button below.