Delaying the resolution of financial issues on divorce means uncertainty

Giles Robinson, Family Law Partner, discusses the importance of a timely conclusion of financial issues by way of a separation agreement or a consent order on divorce.

The Supreme Court decision in Wyatt-v-Vince in 2015 made it clear that it is not possible to simply strike out a claim for financial resolution subsequent to divorce purely on the basis of a delay.  In that case the parties had married in 1981 and separated in 1984. They did not divorce until 1992, but no document was drawn up to confirm that neither party could make financial claims against the other.  Some time later, Mr Vince became a very successful businessman and, as a consequence, a multimillionaire. His former wife sought to pursue a claim for a financial remedy order against him. The court was clear that, despite the delay, she was entitled to pursue that claim.  

Similarly, in the Family Division decision of A-v-B, reported in 2018, the husband did not bring a claim for a financial remedy order until 20 years after the divorce had occurred.  The facts of the case were highly unusual, but the important point was that the passage of time did not prevent the application being pursued.  

Interestingly, in A-v-B, the husband had remarried.  If he had not made an application within his petition, for a financial remedy order (which had then effectively lain dormant), his claims for a financial remedy order would have terminated upon his remarriage. 

Nonetheless, delay can have a detrimental impact on pursuing a claim.  The court added that in considering an application brought many years after the breakdown of the marriage it would, inevitably, consider the delay and consequences for the parties when deciding what settlement may or may not be appropriate.  Delay can, therefore, be prejudicial to a potential applicant too.

The message is clear that delay in finalising financial issues by way of a separation agreement or a consent order on divorce, can be detrimental – whether that is to the party who suddenly receives the claim, out of the blue, after many years, or to the party who has not previously brought the claim where the court will take into account the delay when deciding what award to make.  

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