Informality is risky

When the Court of Appeal told a wife seeking long-term maintenance recently that she should “get a job”, some criticised the decision as being unfair to wives and failing to recognise the contribution that a non-working wife makes if she is the primary carer for children after a divorce. They argued that the pendulum had swung too far in favour of husbands.

Last week in the Supreme Court, the pendulum swung back the other way. Kath Wyatt managed to persuade the court that although she and her ex-husband Dale Vince had been separated for about 30 years and divorced 23 years ago when they did not have brass farthing to their name, she should nevertheless be able to claim against the £107 million fortune amassed by Mr Vince in the years since. Cue outrage from disgruntled ex-husbands everywhere.

The facts are somewhat unusual. Not many people invent wind turbines out of scrap and make the transition from being a penniless hippy to being a castle-dwelling multi-millionaire. However, this is potentially a more important decision than the case where the ex-wife was told to find a job. That decision, while very newsworthy, did not really involve any new development in the law, whereas Vince v Wyatt potentially exposes a huge number of ex-spouses to the possibility of further financial claims.

This is because a large number of people who get divorced do not bother to seek clean break financial orders from the court. This may be because they handled their own divorces and did not see the need. Or it may be cause they had no assets when they divorced and did not wish to incur the solicitors’ fees necessary to get a clean break order or because their ex would not agree to one (because he or she did not see the point); if the other side won’t agree, the only way to get a clean break order is to issue an expensive application at the court, with no guarantee of success. Most people in those circumstances decide that it is not worth the expense and keep their fingers crossed that the ex does not decide to make a claim in the future.

What these people have failed to realise is that getting the divorce to Decree Absolute is not enough. You need a clean beak order too. Many people can manage to handle the paperwork necessary to get a divorce, but obtaining a clean break order is a much more complex task and may be beyond most non-lawyers.

For years, solicitors have assumed that the longer that an ex leaves it to make a claim, the less likely it is that their claims will succeed, particularly if the assets were generated after the divorce. However Kath Wyatt has persuaded a court that it has no power to strike out (i.e. just summarily dismiss) her claim just because of the passage of time. The justification for her still being able to make a claim is that it reflect the non-financial contribution she made by raising the parties’ child.

Vince v Wyatt is unusual in that there are no documents at all from the parties’ divorce 23 years ago, apart from a Decree Absolute. Therefore the parties know that they are divorced, but there is no evidence that they had any kind of agreement about finances or an order from the court. Strangely the court records are not available. The solicitors have in accordance with normal practice destroyed their files after 6 years.

It remains to be seen how much she will get. My money is on her being awarded a lump sum of a few hundred thousand pounds so that she can buy a house mortgage free.

14 March 2015

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