Reasonable grounds

When lay people (or even lawyers who are not family lawyers) think of divorce, they probably think of it as a legal process that dissolves a marriage and deals with any issues that arise about the family finances. However this is only half correct.

How many people know that divorce itself is a different legal process to the process of dealing with, and capping off, financial claims on divorce? How many people know that, in effect, two applications are required to achieve finality in respect to a married couple's financial claims on divorce, and that only an order made by a court can ensure neither party can bring any fresh claims for financial provision after the marriage has been dissolved? Not many.

This is why the Supreme Court's decision handed down in the case of Wyatt v Vince came as a surprise, even to some family lawyers.

Background to the case

Ms Wyatt and Mr Vince married in 1981 and had a child together. They separated (they didn't divorce) in 1984 and at that stage, neither party had any assets or income. Indeed the Supreme Court described Ms Wyatt bringing up her children (she had a child from a previous relationship) in 'straightened circumstances.' Over the eight years following separation, Mr Vince pursued a 'new age travelling lifestyle' while Ms Wyatt brought up her children, going on to have two more from a subsequent relationship.

The parties finally divorced in 1992 when the County Court in Sunderland pronounced the Decree Absolute, which is the document produced when the court dissolves the marriage at the conclusion of the divorce process.

Fast forward a decade, give or take, and Mr Vince has turned his green energy company into a multi-million pound business. Mr Vince had become a wealthy man while Ms Wyatt's financial circumstances continued to be very modest.

In 2011 Ms Wyatt brought a 'financial remedy' application to court (the technical term for money claim on divorce). Mr Vince counter sued and asked the court to strike out Ms Wyatt's claim. In doing so he asserted that Ms Wyatt's claim had no prospect of success given the delay that had occurred between the divorce in 1992, and the claim on divorce in 2011.

The issue as to whether Ms Wyatt had 'reasonable grounds' for bringing the case eventually fell to be decided by the highest court in England, the Supreme Court. Their decision: yes, Ms Wyatt had a reasonable chance of being successful in bringing a claim against her former husband, and should be allowed to bring her case unimpeded.

What reasonable grounds?

The surprise to most non-family lawyers is, how can a person so long after the breakdown of a marriage be entitled to claim against their ex-spouses?

The answer is, unlike most other types of claims under civil law, money claims on divorce are not time limited. They run and run until one of three things happen; the potential claimant remarries; one of the parties dies; or the court makes a court order capping off claims.

Financial claims on divorce also require a separate court application (additionally to the divorce itself) so that the court can make an order capping off claims, even when the parties agree on how to arrange their finances on divorce.

This case demonstrates that it is important for everyone (it does not matter how wealthy they are) to get at least some legal advice when the divorce process has started or is about to start, so that financial claims can be dealt with there and then.

This will ensure that long divorced couples will not be able to give each other a nasty surprise years after they have divorced and moved on with their lives. Even better, particularly for those entering into a marriage with wealth already acquired, a nuptial agreement can reduce the uncertainty even further by potentially limiting claims on divorce, regardless of when they are brought.

Tom Farley-Hills is a partner at London law firm Harbottle & Lewis