Should there be a time limit on financial settlements in divorce cases?

12 March, 2015
by: Cripps Pemberton Greenish

Yesterday the Supreme Court allowed a former wife’s appeal to make a financial claim against her ex-husband 22 years after the divorce was finalised.

The couple married in December 1981, separated in 1984 and divorced in 1992. The court file containing the divorce documents from 1992 had been mislaid meaning it was unknown what, if any, order was mas made at the time regarding financial provision.

In the absence of the file the court had to make an educated guess that Ms Wyatt did include the full range of financial orders in her petition. The court then had to ask themselves ‘assuming that in her petition she included applications for financial orders, what orders, if any, were then made upon them?’

The court decided it was likely that no order was sought or made meaning Ms Wyatt’s financial claims against Mr Vince were left open. Mr Vince is adamant that an order and final settlement was made 22 years ago but in the absence of any evidence he cannot prove this.

The Supreme Court unanimously allowed the appeal and directed that Ms Wyatt’s application should proceed in the Family Division of the High Court. The reason for the appeal is a procedural one. The Civil Procedure Rules allow the courts to make a summary judgement however there is no equivalent power in the Family Procedure Rules. The court said that the omission of summary judgement in the Family Procedure Rules is deliberate and that when an ex-spouse applies for a financial order the court has a duty to determine that application having regard to all the circumstances. It was therefore decided that Ms Wyatt’s case was legally recognisable and should be heard by a Family Court.

Lord Wilson said Ms Wyatt faced difficulties in seeking to establish that a financial order should be made in her favour, including the short duration of the marriage and the long delay since the then. However, she will probably rely on her greater contribution to the upbringing of the couple’s children over many years which may justify a financial order for a comparatively modest sum.

Mr Vince certainly thinks there should be a time limit on financial settlements in divorce cases saying:

‘I feel that we all have a right to move on and not be looking over our shoulders. This could signal open season for people who had brief relationships a quarter of a century ago.’

It is important to note however that the outcome of this case will not allow a former spouse to take a second bite of the cherry where there is a recorded financial settlement.