UPDATE: Hey, where did my divorce go? Supreme Court judgment in Wyatt v Vince

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The Supreme Court has released its decision in the case of Wyatt v Vince [2015] UKSC 14 following the wife's appeal against the decision of the Court of Appeal to strike out her financial remedy claim which was brought 20 years after the parties divorced.

In a previous post on this blog, which sets out the facts of the case and provides a timeline of events, I looked briefly at the Court of Appeal's decision and specifically focused on the issue of retaining client documents in circumstances where there is no limitation period.

Whilst the Supreme Court allowed the appeal, it should be noted that this is in relation to the interpretation and application of the law, specifically Rule 4.4(1)(a) and (b) of the Family Procedure Rules 2010, and not in relation to the merits of the wife's case.

With a case like this with such extreme and unusual facts, and with issues that generate such strong emotions and opinion, there can be a tendency for the media to get carried away. Examples of some of the headline over the last two days are set out below: 

"Former New Age traveller wins right to cash he made 10 years after they divorced" from The Metro 11 March 2015

"Wife wins right to ex-husband's millions - 30 years after they separate" from www.bestdaily.co.uk

"Millionaire tycoon Dale Vince faces having to buy ex-wife a home 23 years after they divorced" from London Evening Standard

What the Supreme Court found:

The Supreme Court found that the Court of Appeal had exercised a power to strike out a financial claim on divorce based on a summary assessment of the merits of the claim when such power does not exist in family proceedings. Such a power does exist in civil proceedings in order to prevent people being able to pursue un-meritorious claims at an early stage. The Court of Appeal judges had reasoned that an equivalent power must also exist in the FPR notwithstanding the fact that it was not explicitly stated. The Supreme Court found that the omission in the FPR was deliberate citing the differing nature of a claim arising from a civil or commercial relationship and that of a claim arising from the breakdown of a marriage which could have financial consequences for an ex-spouse years after the marriage particularly when there are children involved.

What the Supreme Court did not find:

The Supreme Court did not find that Kathleen Wyatt was entitled to a share of Dale Vince's millions but rather that she is entitled to have her claim heard before the Court with due consideration to all the factors set out in section 25 of the Matrimonial Causes Act 1973, of which the considerable delay between the divorce and the claim will be relevant as will the fact that the husband made his money after the parties separated. It may be that, following such an exercise, the High Court may decide that Katheen Wyatt should be entitled to receive something from Dale Vince but that is yet to be seen and is by no means a foregone conclusion.

Whilst there may be some concern about people bringing un-meritorious claims against their former spouses years after they have untied the knot, surely it is of equal importance to consider dealing with a couple's financial claims sooner rather than later so that such issue can be avoided in the future? After all, it was open to Dale Vince to ask the Courts to determine his ex-wife's claim at any time over the last three decades but he did not do so.

It remains the case that there is no limitation period on financial claims on divorce. If the claims are not addressed and dismissed they will remain open. That is the position in law which the Supreme Court has made clear this week.

Please make any comments below.

Hey, where did my divorce go? Some alternative thoughts on Vince v Wyatt

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Word count: 694

Time to read: 4 minutes 

The case of Vince v Wyatt [2013] EWCA Civ 495 was heard at the Court of Appeal in May 2013 and related to an application for a financial remedy which was brought by the Wife 27 years after the parties separated and 19 years after decree absolute was granted. At the end of their relatively short relationship neither party had any assets or significant income to speak of, and the Court noted that both had embraced a “New Age” lifestyle.  Over the course of the next three decades the parties’ financial lives had little to do with the other save for a couple of child maintenance applications by the Wife.  Both parties started new relationships, the children of the family grew up and reached maturity and the Husband launched a business recycling discarded materials into wind turbines.  That business, to everyone’s surprise, went on to be worth millions.

Given this timeline, it is difficult not to look at the Wife’s application with a degree of cynicism particularly when she also issued an A v A application to the tune of £125,000 for the Husband to pay her legal fees so that she could pay her lawyers to bring the claim against him. The Husband, perhaps understandably, issued an application to have the Wife’s claim struck out under the seldom used Family Procedure Rule 4.4(1). Whilst he was not successful initially the Court of Appeal allowed his appeal on the basis that the first instance judge had construed the rule too narrowly.  The Wife’s claim made it no further.

The analysis of Rule 4.4(1), and its relationship with its counterpart in the Civil Procedure Rules 3.4(2), is undoubtedly the most valuable point which practitioners can take away from this case and will be of particular use when analysing claims which involve a significant delay between separation/divorce and the application for a financial remedy, despite the extremely unusual circumstances of this case.  Among those unusual circumstances was the fact that there remained only one piece of documentation relating to the original divorce proceedings, the decree absolute, which the court was required by law to keep a copy of.

At the time of the divorce, both parties had instructed solicitors (the Wife actually consulted with solicitors on no less than 5 different occasions between 1984 and 2011) but none had retained their files.  It was therefore not possible to know for sure whether the Wife was even entitled to bring a financial claim or whether any such claim had been dealt with and dismissed, although the trial judge did acknowledge that this scenario was unlikely given the standard practice to include such an application in the petition and the lack of financial assets at the time of the divorce.

Whether a firm retains the client’s files and for how long will depend on the agreement made with the client (who is the legal owner of the files) which is usually made at the point of engagement.  If no agreement is made the SRA’s guidance on the retention of client files suggests that firm keep in mind any statutory limitation period which may arise out of the files when deciding how long to keep them.  Given that there is no limitation period for a claim for a financial remedy under the Matrimonial Cases Act 1973, how long should firms who practice family law keep their client’s files for?  After all, file storage is not cheap and even digital data will degrade over time.  The court certainly cannot be expected to keep a complete file for every divorce, they have enough trouble keeping track of the active cases let alone managing decades of historical files (plus who would meet the cost?)  Another solution, which would have solved this issue in the Vince v Wyatt case, would be to record the status of any financial claim on the Decree Absolute. Surely there is space for an extra sentence or two setting out whether any financial claims had been issued and/or dismissed? Any other suggestions?

A copy of the judgement for Vince v Wyatt can be found here and an analysis of the application of Rule 4.4(1) can be found here.