An Important New Judgment for Financial Provision Cases
It has often been a point of difficulty in any divorce proceedings when addressing the fairest possible way for a court to make an order for financial provision. While controversial in nature at its core, these debates are often fuelled by singular cases that display the court attempting to exercise a body of general principles, against an almost infinite number of variables, within any given relationship. This is often made more complex by parties who make informal agreements while also seeking assistance from legal advisors and the courts. In many ways this leads to outcomes that on the face of them may seem unfounded and possibly even unfair.
This makes predicting judgments almost impossible for a single petitioner hoping to find an amicable, if not slightly in their favour, decision from the court. It is therefore fair to say that only those with a wealth of legal experience in the world of Family Law can even begin to efficiently approximate these decisions. The recent case of A v B (no. 2) [2018], has demonstrated this point in a way that has sent waves through Family Law circles. First however this article must address some background.
In the significantly recent case Wyatt v Vince [2015] a surprising unanimous judgment led to an order for financial provision being made some time subsequent to a divorce. The appellant, Ms Wyatt and the respondent Mr Vince were married in 1981, but separated shortly after in 1984. The couple divorced and in late 1992 when the decree absolute was granted. During the period of separation, Mr Vince lived a ‘new-age travelling’ lifestyle and was unable to substantially contribute to the financial care of Ms Wyatt or their son. While it is unclear whether during this time Ms Wyatt applied for a financial order, due to a misplaced court file, the court saw no reason to believe that her claim would have been struck-out. During the late 1990’s Mr Vince’s green energy company took off and he progressed to the status of multi-millionaire in the following years. He became the primary carer for their son and Ms Wyatt who had subsequently had two more children, remained on a modest income.
In 2011, some 19 years after the divorce, Ms Wyatt made a claim under the divorce proceedings for financial provision in the form of a lump sum and for interim payments to fund her legal costs. Mr Vince cross applied for this claim to be struck out on the basis that there was no reasonable grounds for the claim and that it was an abuse of court proceedings. While continuing dissenting judgments ensued, the case found its way to the Supreme Court and eventually a unanimous decision was given in the form of the repeal of an order for her to repay any amount of the lump sum, initially granted in the High Court. The judgment also restored the order to pay legal costs that was repealed in the Court of Appeal. The rationale behind the judgment was in itself in many ways a strain on the general principles that apply to this area of the law. It was however decided that an abuse of process had not occurred as Ms Wyatt had not remarried and therefore the obligations from her previous marriage had not been negated. It was also recognised that the reasonable grounds for the financial provision existed on the basis that she had been the primary carer of their child for a number of years without financial support from Mr Vince. For these two reasons the appeal was granted and the order restored.
While this case ran over a number of years, the eventual decision gave a starkly new perspective on when and how orders for financial provision can be made. Of course it has subsequently been a topic of many academic articles, legal essays and debates. These all however have been thrown back into the spotlight by the recent decision in A v B (No. 2) [2018]. It may by this point be obvious that the recent case rendered a different decision and one which may on the face of it seem contrary to the precedent laid out in Wyatt v Vince. Close examination of the facts further evidences the initial point made in this article that there is no substitute for proper legal advice and moreover this advice must not fall on deaf ears.
A and B were married in 1983 and shortly after had 2 children. Much like the case of Wyatt v Vince the relationship itself was decidedly short lived and the couple separated in 1991. Decree nisi was pronounced in 1992 and made absolute later that year. During this period A had vacated the matrimonial home and had begun a new relationship. He maintained a financial obligation both to the family home, in which B resided with the 2 children, and continued to make contributions to endowment policies that were jointly owned. At this point a number of areas begin to be disputed with regard to the factual matrix of the case. In 1992 A was made redundant and was given a £30,000 redundancy payment which he asserts he gave £10,000 to B. In 1994 the marital home was sold and the negative equity paid off. There was, at this point, an informal agreement for B to pay child maintenance for the care of their 2 children who, for the most part, lived with A. in 2006 a further informal agreement, the details of which were later dispute, arose in which B and her new partner acquired a new home, in which A and the children would reside. B subsequently funded a substantial extension on the property. In 2012 A and his new partner funded a workshop in the garden for the purpose of continuing a business from home. In 2013 A married his new partner and therefore sought to have the property transferred to his name for his life in the form of a lump sum. B issued an application to strike-out this claim.
Initially the application to strike-out was refused on the grounds that while the application was made some years after the separation, the principles in Wyatt v Vince should be upheld. This being that the application should succeed on the basis of relationship generated need. This however was not the case as in his final judgment on preferring the evidence put forward by B, Mr Justice Baker dismissed A’s application and concluded that the circumstance did not merit financial provision.
The reasons he gave for this judgment were that, informal agreements between the parties had existed during the period of 1992 to 1994 and while this did not preclude a claim for financial provision for either party, it should be taken into consideration. Furthermore during the period of occupation by A in the home acquired in 2006, it would have been highly improbable for B to extend the property should an order for occupation for life have been discussed, as A alleged. It was therefore disproportionate to uphold this claim. He finally concluded by distinguishing elements of the case that differed from Wyatt v Vince. These were, that comprehensive agreements had initially been agreed to by the parties subsequent to the divorce in 1992. A had received considerable financial assistance by way of financial provision for the children from B throughout their minority. While A did have significant financial needs, these were not of the kind that B could be reasonably be expected to meet. A had not suffered significant disadvantage in his career to found a claim of this nature. B had made financial provisions for A in good faith that he would not bring a claim against her and would not have done so if she had known he later would. The final point in his rationale however was in some ways most telling in regards to the context of this article and that was; the only logical explanation for the delay in the claim put forward by A was that he was alerted to the possibility in 2015 that his right to claim for financial provision may have survived the period of time subsequent to the divorce.
It is clear that this displays a marked shift away from the judgment given in Wyatt v Vince. The rationale behind the judgment in A v B was somewhat extrapolated from the decision that was desired. In many cases some creative judging can render a slightly unexpected decision and indeed in this case to diverge from such a recent judgment was exactly that. This article must therefore conclude on its consistent and original point, without proper knowledge and experience the average person would stand little chance of navigating the murky and unrelenting waters of Family Law.
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