Tag Archives: divorce

Financial claims after divorce: will it ever be too late?

A recent Supreme Court decision has highlighted the necessity to ensure that financial matters are resolved during the course of divorce proceedings. This is particularly true for those acting in person after the cuts to legal aid.

Vince v Wyatt  saw a woman whose marriage had broken down almost 30 years ago granted the right to pursue an application for financial remedy from her ex-husband who had, since the divorce, accrued substantial wealth. The Supreme Court unanimously allowed the appeal and directed that the belated claim should proceed in the Family Division of the High Court.

The couple had met in 1981 when she was 21 and he was 19 and married a year later. They had a son and Ms Wyatt already had a child from a previous relationship who was accepted as part of the family. The family by no means lived a life of luxury and mainly subsisted on benefits. The couple separated in 1984 and Mr Vince embarked on a travelling lifestyle, leaving Ms Wyatt to bring up the children without any financial help.

The couple divorced on 26 October 1992. Unfortunately, the Court file was somehow misplaced and therefore it is unknown whether a financial order was made at the time or indeed whether the financial claims were dismissed. The Court stated that they had no reason to believe the latter option, especially without her consent or receipt of a capital payment. The Court made an educated guess that Ms Wyatt had included in her petition applications for the full range of orders as this was usual practice. This was in contrast to Mr Vince’s assertions that the Court ordered he “did not have to pay [the wife] any money”.  It was from the late 1990s onward that Mr Vince’s business became extremely profitable rendering him a multi-millionaire.

Ms Wyatt had two more children and the parties’ son went to live with Mr Vince in 2001. Despite Mr Vince’s new found wealth, Ms Wyatt in comparison continued to struggle financially. Following her application to the Court, Mr Vince made a cross application to strike out her claim for financial remedy.

Pursuant to Rule 4.4 of the Family Procedure Rules a substantive application may be struck out if:

  • The Court may strike out a statement of case if it appears to the Court that:
  1. That the statement of case discloses no reasonable grounds for bringing or defending the application;
  2. That the statement of case is an abuse of the Court’s process or is otherwise likely to obstruct just disposal of the proceedings.

Upon consideration of the power to strike out it was noted that the Family Rules do not contain a corresponding power of summary judgement as per the Civil Rules. This was significant, as the family rules deliberately omit an equivalent power. The Court decided that it was incorrect to say that there were no reasonable grounds for bringing the case, in the absence of hearing any evidence. It was found that it was not a “frivolous, scurrilous or obviously ill-founded application”, nor was it an abuse of the Court’s process.

Furthermore, the strike out application made by Mr Vince was dismissed and, on Ms Wyatt’s application, the Court ordered Mr Vince to make interim periodical payments to her, or indeed “directly to [her] solicitors”.

Mr Vince voiced his upset about the decision, stating that he was “disappointed that the Supreme Court has decided not to bring the case to an end”, three decades after the marriage ended. He expressed a desire to move on and added that people should not have to “look over their shoulders” after divorce.

However, the ruling is significant. Resolution chair Jo Edwards said that the Supreme Court has made it clear “that the draconian power to strike out family proceedings simply does not exist”, although she did stress that the merits of such applications will be dealt with on a case by case basis by the Courts.

This ruling makes it clear that financial matters should be resolved as quickly as possible during divorce proceedings. It would appear that otherwise those who make substantial amounts of money post-divorce will be exposed to “potentially opportunistic claims”. If Ms Wyatt’s application had been dealt with at the time the marriage broke down, it is “likely that a capital clean break would have been achieved” which means that she would have no option to essentially come back for more now.

Ms Edwards added that it would be interesting to see how the Court handles Ms Wyatt’s claim. It is “more likely to succeed on the basis of her contributions through caring for the children after the marriage breakdown”, but the fact that she has left it so long before bringing her claim to the Court may go against her, she added.

Indeed, the Court made it evident that Ms Wyatt would face formidable difficulties in her claim. This was for a number of reasons including the short length of the marriage, the low standard of living enjoyed by the parties, the period of time that has passed since the divorce, the fact that the Mr Vince accrued his wealth post-separation and that the Ms Wyatt made no contribution to this wealth. Nevertheless, the claim is to proceed and I will be sure to keep you all updated!

To those divorcing or divorced already, make sure the financial claims are finalised!

Are you happier if you divorce?

secret to marriageIt is officially two days until Christmas, and I have jetted off home, back to bonnie wee Scotland for the festivities. But before I went, at Stowe Family Law LLP there was work still to be done.

On Friday I became best friends with Excel. No, seriously: we have formed some sort of bond. I am now a pro at making asset schedules and budget summaries.

An asset schedule is essentially a breakdown of all the relevant assets that the couple has, such as property, money in the bank and other miscellaneous assets such as cars, life polices, jewellery et al.

All these assets must be entered into the spreadsheet to give a grand total of the all assets owned by the husband, the wife and joint property assets. Then liabilities must be entered and deducted from the total assets. In addition to this, income has to be inserted into the schedule. Ta da! Now you have an asset schedule, which will become part of the client’s file for court proceedings.

I have also been thinking about Zoe’s recent blog post about marriage. Zoe has written about research showing that married couples live longer and are happier and healthier. This all seems to come to light at this time of year, when cynically it has been said that many couples seem to divorce after the Christmas period. And this is where I come in. I recently wrote a thesis on reforms in divorce law and discovered, like Zoe, that the breakdown of marriage can lead to a rise of social problems such as crime, substance abuse and, for children, declining academic performance. This would then suggest that in fact those who are married are happier and healthier.

However, I would like to provide a different take on this. What about if those couples who divorce are actually happier? There are positive perceptions associated with divorce: adults find fulfilment and children are able to develop successfully, surrounded by dynamic family forms. Divorce, arguably, can be viewed as a “second chance for happiness.” (Paul Amato).  Essentially, people who are healthier and happier in a marriage, have to have a happy marriage. But there are arguably couples in a marital relationship who are not happy and divorce can provide the happiness they need.

This should not be taken to mean that divorce is a simple, carefree process. It is evidently stressful and traumatic. However people do recover and sometimes become happier down the road.  My thesis explored the different coping mechanisms of divorcees and how psychologically people do recover and are able to reconstruct their lives and build on the “self.”

In other words: people can be happy in marriages, but divorce can also provide individuals with happiness. Then again, this conclusion is based on statistics, and we all know what people say about them…

Anyway, I am off and back home for the holidays. I look forward to returning to the Stowe Family Law LLP – Diary of a Trainee blog in the New Year.

Image credit: Lel4nd.