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
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
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.
Rebecca Hawley is a solicitor in the family law team. You can telephone Rebecca direct on 01892 506037 or email Rebecca at firstname.lastname@example.org