Family Law Blog

Delay in Financial Remedy Proceedings

17 May 2013, by Taylor King Family Law Solicitors

There is no statutory bar to pursuing a financial claim many years after a divorce. Indeed in Hill v Hill [1997] 2 FCR 477 a wife was allowed to pursue a claim 25 years after a divorce although the circumstances were unusual as the parties had resumed cohabitation. In Rossi v Rossi [2006] EWHC 1482, [2007] 12 FLR 790 Nicholas Mostyn QC (sitting as a High Court Judge) expressed the view that despite there being no rule it would generally speaking be hard for a party to bring a claim more than six years after the divorce unless there were exceptional reasons for such a long delay.

In the case of Vince v Wyatt [2013] EWCA Civ 495 the parties married in 1981 and had adopted “the new age or traveller creed and lifestyle” and had no assets of significance. There were divorce proceedings in the early 1990s but the only surviving document was the decree absolute dated 26th October 1992.

In the years following the husband started a wind power business and became very successful. The business eventually came to be valued at £90m. In May 2011 the wife issued an application for financial remedy. The husband sought to strike out the wife’s claim under rule 4.4(1) of the Family Procedure Rules 2010 although this was dismissed at first instance and the husband appealed to the Court of Appeal.

Rule 4.1(1) gives the court the power to strike out a case if it appears to the court:

  1. that the statement of case discloses no reasonable grounds for bringing or defending the application;
  2. that the statement of case in an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings;
  3. that there has been a failure to comply with a rule, practice direction or court order; or
  4. in relation to applications for matrimonial and civil partnership orders and answers to such applications, that the parties to the proceedings consent.

In this case the long delay combined with the lack of any real prospect of success supported the husband’s application for the wife’s application to be struck out. Both were of such an extreme nature the decision to strike out the wife’s claim was straightforward.

The period of ‘reasonable delay’ may be extended because of the presence of minor children or co-ownership of property. Another reason may be the inability of parties to obtain legal advice.

In many cases the issue of delay will be connected with whether or not the application has a real prospect of success. Generally the longer the delay the smaller the prospect of success. However, there will be some cases where there is no delay and there is no real prospect of success for other reasons. One such possibility would be the existence of a pre/post nuptial or separation agreement. [see our blogs on separation agreements]

Given the highly unusual circumstances of Vince v Wyatt it is advisable to settle all financial claims at the time of the divorce.

There are other reasons why financial applications should not be delayed. For example, in a rising housing market the court will determine the value of the property at the date of the hearing. Hence delay could result in the court ordering a lump sum based on the value at the date of the hearing, not the date of the separation.