Should there be a limitation period for financial claims following divorce?

Divorce|September 29th 2016

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

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Comments(14)

  1. spinner says:

    Six years seems fair but I would add a provision to account for children of the marriage but I’m not sure how that interacts with the children’s act that would seem to provide a way for the parent with care to get housing for the remainder of the children’s childhood anyway so maybe six years would be fair.

  2. Andrew says:

    Six years is preposterous. Get matters settled st the time so people can move on with their lives. Six months from decree absolute.

  3. John Bolch says:

    Good point. You wouldn’t really want to leave the spouse to rely upon a different jurisdiction – after all, ‘needs’ in the MCA includes need to house dependent children. Perhaps it should be 6 years, or until there are no longer any dependent children, whichever is the later. Or even have the limitation period run from the date that the last child became independent.

  4. John Bolch says:

    My reply was obviously aimed at spinner. As for 6 months, I suspect few lawyers would agree with that, although you could have a system whereby the divorce could not be finalised until financial matters were resolved.

    • Marilyn Stowe says:

      Dear John
      I’d go further. 6 months is ridiculous. I don’t see the need for a cut off point.
      Regards
      Marilyn

      • John Bolch says:

        Hi Marilyn,

        Agreed on the 6 months. As for the need for a cut-off, I’m still marginally in favour – it would at least save the court from having to spend time on really late merit-less claims.

        Best,

        John

  5. Andrew says:

    Marilyn, John, you only get three years to bring a p.i. claim for catastrophic injuries against an insurance company which has no soul to be damned, no body to be kicked, and above all no life to get on with.
    .
    Six years is twice that, against an ex who would like to get on with whatever years s/he (probably he) has left. Running the time limit from the adulthood of the youngest child could be six times that if the wife was pregnant at the time of the divorce!
    .
    Do it at the time. Share what they have at the time, not (apart from pension rights) what they might have later, equally if there is no prenup and according to the prenup if there is. Postpone giving effect to the division if necessary to avoid undue hardship to underage children while they are underage if that can be done – it’s no good letting the wife hang on to the home if she cannot pay the mortgage and he has to live too.

    • John Bolch says:

      Love that first paragraph!

      As I said earlier in these comments, we could have a system whereby it was required that financial matters were resolved before the divorce was finalised, as I believe is the case in some other jurisdictions.

  6. Andrew says:

    The bit about soul and body is from Lord Thurlow LC; the last bit is all my own work!
    .
    What you suggest would work to a point. There would have to be a provision allowing a decree to be made absolute if either was party was foot-dragging.

  7. Andrew says:

    In fact a petitioner who applies for a decree should be deemed to have been given notice of intention to proceed with all the categories of financial claim mentioned in the petition and should be required to serve the financial information which that requires at the same time as applying for the decree. If a petitioner does not apply for a decree six months after serving the respondent, the latter should be allowed to apply for a decree and the same rule would then apply.
    .
    What is important is that applications are made early and decided (or settled) on the financial circumstances of the parties at the time – so that they have a motive to make something of their lives. That of course would mean making joint-lives or open-ended maintenance very rare, because orders like that create two people with no reason to better themselves.

  8. Andrew says:

    Now I come to think of it – most petitions lay claim to all the sorts of financial relief allowed, even if only because that bit is not crossed out. If a Respondent when acknowledging services gives notice that he (usually he) will claim financial relief and then proceeds with this claim will that not in practice force the petitioner to “cross-proceed” with hers so that they can be dealt with together?

  9. Andrew says:

    Or of course allow either party to serve notice requiring the other to launch the financial proceedings within six months or not at all?

  10. cookie02392 says:

    It’s it strange that most comments are women against their women male counterparts…sorry for the rant, but i need to just say…

    In my case, having been brought up to “Do the right thing” i, when i realized there was no way back after 15 years of marriage, did the following;

    1. Provided Maintenance for my daughter and spousal maintenance for 12 months after moving out (remained in the marital home for 8 weeks – which was hell), (12k tax free)

    2. moved out as soon as practicable, but maintained payments for 8 months afterwards (for spousal) and remain to this day to pay over £500 PCM (over 1.6th of my wages) to my daughter, yet still took on 1/2 of the debts leaving me £45k in debt, and nothing else (but my clothes, and a few personal items) – living on beans and not much else.

    3.Abused / pressured by using my daughter against me during the first 12 months, having started a new relationship with someone (who inadvertently went to school with my ex.) Under immense pressure from Ex. ended that relationship (even though they were not friends at school – apparently the fact that they used to know each other in passing wasn’t good enough)

    4. Lived in a flat share, with no claim to goods that were in my name (£5k of Sisiilalia sofas) yet, because of the pressure to “See my daughter i relented.

    5. My new partner looks after her Mum who is severely disabled, and for reasons beyond this post, means she cannot get extra work)- yet my ex.called her openly “Benefits Betty” even though we even after 3.5 years are not still living together.

    6. My Ex. coerced me into signing over the house to her, in favor for a divorce ( i wanted it done before 2 years) – she reluctantly accepted unreasonable behavior (She had affairs, set me on fire twice, pushed me down the stairs – but as a man i never reported it)

    7. 6 months after handing the house over to my ex. she sold, and got £100K more than expected… and purchased a new place for her and my Daughter.

    8. she paid off her debts, moved, kept the sofas i was paying for (still, and refused to let me have them) – mean while, I am now in a bed sit, with a shower and bog over the stairs, paying my landlord £550

    9. I have access to my daughter every 2 weeks, with pick up 10am Saturday, home Sunday 10am, so 2 days a month normally. I have bene denied Summer holidays, XMAS or birthdays, it’s you “ONLY pay XXX” you get “YY”

    i should not that because of finances, and personal constraints ( i have no friends, family here, i stay so i can see my daughter) that i have not been to a solicitor – i do not have any financial capability to fight this, i am on my own financially, and limited emitional support, but do feed i have not been treated fairly.

    We have decree absoloute (funded and pushed for by me, but critically,m no financial settlement was ever sourt, because my ex. was unwilling to let me have details of her income, pension etc… I have about £200 PCM as a pension, so no issue disclosing that, but my ex. works for a pension payroll company, and in her words ” you can F**K o*F ” if you think your entitled to anything from me.

    I would end it, if it not for me being a burden on others.

    Men get such a hard time, i never cheated, never strayed, it just became impossible. I tried, i was a let down. We are not all Bastar*s, some of us, genuinely try to do our best, but because we are men, its assumed otherwise.

    Right now, Iwould rather not be here, as hard as it is for my wonderful daughter, but another 5 years of bedsit hell, makes me thing is it worth it.

  11. H says:

    I’m getting screwed by my ex-wife 7 years after divorce because she wants to spite me for getting in a relationship with another woman and is using this loophole in UK law to do it. We have literally the most backwards divorce law in the world, which is why London is called the divorce capital of the world.

    MGTOW is the only way for men to protect themselves these days. If you want to understand suicide, just talk to a man who has been Divorce Raped using this Feminazi legal system.

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