For most types of civil court claim there is a ‘limitation period’, during which the claim must be made. Once the period has ended, that claim can no longer be taken forward. For example, both personal injury claims and claims under a simple contract must generally be made within three years of the date that the cause of action ‘accrued’ (i.e. the earliest date that the claim could have been made).
For financial claims following divorce, however, there is no period of limitation – claims can be made at any time, so long as the claiming party has not remarried. This issue was highlighted recently by the well-publicised case of Wyatt v Vince, in which the wife issued her claim nineteen years after the divorce was finalised. Now it has surfaced again with the publication this week of the judgment in Waudby v Aldhouse. In this the wife began proceedings for a financial remedies order some twenty years after separating from her husband. The wife in Waudby v Aldhouse was less successful than Kathleen Wyatt (who received a lump sum of £300,000): her claim ultimately came to naught. Orders for the payment by the husband to her of a lump sum of £10,000 and maintenance of £9576 per annum were discharged (cancelled), after the husband appealed against them.
I don’t actually want to discuss the reasoning behind the differing outcomes of the two cases (although the Waudby judgment is definitely worth a read). Instead, I just want to ask the simple question: should there be a limitation period for financial claims following divorce?
Before I proceed, I should say that cases where financial claims are not finalised at or around the time of the divorce are actually quite rare. Usually, one or both of the parties will be advised to make sure that any (further) claims (or potential claims) are dismissed by court order when the divorce goes through. However, in these post-legal aid days of litigants proceeding without a lawyer, it may well be that more cases may conclude without an order and that the incidence of ‘late claims’ may therefore increase in future.
Now, there are various arguments for and against a limitation period for financial claims following divorce, but the following are some that I have thought of (I suspect that more would occur to me if I gave the matter more time).
Arguments in favour of a limitation period include:
- Unfairness to the spouse responding to the claim – why should they have to be subjected to a claim many years after the divorce/separation?
- Certainty – once the limitation period expires, both parties can move on with their lives, safe in the knowledge that no claim will be made against them.
- It could be argued that the period of ‘self-sufficiency’ during which the claimant spouse managed without financial assistance from the other spouse indicates that they have no need for an award.
- The longer the period between the divorce and the claim, the more the finances of both parties will have changed from what they were at time of the divorce, making it more difficult to make an award that is both reasonable and relevant to the circumstances of the parties at the time of the divorce.
Arguments against a limitation period include:
- Fairness to the claiming spouse – after all, the court will only make an order if it considers it fair to do so.
- The responding spouse can apply to the court at any time to dismiss the other party’s claims, thereby bringing matters to a conclusion.
- Delay in making an application can in any event be penalised by a reduction in the award to the claiming spouse, possibly to nothing.
- The claiming spouse may be ignorant of the limitation period, and may therefore ‘miss out’ on what is ‘rightfully theirs’.
On balance, as the above might suggest, I find myself veering in favour of there being a limitation period although, as I say, there are no doubt other arguments to consider, and I am therefore willing to be persuaded otherwise. I suspect that the issue of limitation has been considered by others – it has certainly been judicially considered, e.g. in Wyatt – but I have purposely not looked for other articles on the subject, in order to ensure that this post is entirely my own work.
The next question is: if there were to be a limitation period, then how long should it be? Well, as there has been no limitation period up to now it should surely be fairly generous, and therefore I would say that it should be at least six years from the date of the decree absolute (six years is a period mentioned in the judgment in Waudby). Such a period would, I think, provide fairness to both parties. The main issue seems to be fairness to the claiming spouse, but surely six years (plus the period between the issuing of the divorce and the decree absolute) is long enough for a claim to be made?
I would be interested to hear what others think.
The judgment in Waudby v Aldhouse can be read here.
Image by Alex Nguyen via Flickr under a Creative Commons licence