Family Law blogger John Bolch discusses the highly unusual case of A v B in which an ex-husband of 25 years has been allowed to make a financial remedy claim. Should there be a limitation period for claims?
I’m sure I’ve said something like this here previously, but one of the features of family law is that there’s always something new, in terms of the circumstances in which family litigants find themselves. No matter how long you’ve been studying the subject, you’ll never have come across every set of facts. That, of course, is what happens when you are dealing with the unique intricacies of people’s lives.
Take, for example, the case A v B, in which Mr Justice Baker handed down a preliminary judgment in January (the report of the judgment was only published last week). As the barrister for the ‘wife’ commented, this was a highly unusual case. You will note that I have put the word ‘wife’ in inverted commas. That is because the respondent in the case has not been the applicant’s wife for more than twenty-five years.
The hearing concerned an application by the wife to have a financial remedy claim issued by the husband in February 2016 struck out.
The parties had married in 1983. They have two grown-up children. During the marriage, the wife was the main breadwinner, and the husband claimed to be the primary carer of the children. The parties separated in 1991, and shortly afterwards the husband petitioned for divorce. The petition was undefended and the divorce was finalised in June 1992.
At the time of the marriage breakdown, the parties had limited resources. Exactly how those resources were divided was in dispute, but the wife claimed that the husband received £58,000 of the matrimonial pot and she retained the balance of £38,000.
The parties remained on good terms following the breakdown of the marriage. The wife moved into rented accommodation with her new partner, and the husband stayed in the former matrimonial home with the children. The wife continued to pay the mortgage on the property, along with all household outgoings. In 1992, however, the wife could no longer afford to make those payments and she and her partner, therefore, moved into the former matrimonial home, with the husband moving out. The children, however, continued to live mainly with their father, and the wife paid maintenance for them until 2009.
Both parties married again, the wife in 1999 and the husband in 2013. In 2001 the wife’s new husband was involved in a management buy-out of the company for which he worked, as a result, he obviously came into a substantial sum of money. In 2006 the wife and her new husband agreed to provide the sum of £400,000 to enable a house to be purchased for the husband and the children to occupy.
The parties were in dispute as to the (first) husband’s right to occupy the property. He believed that it had been intended that he could live there for the rest of his life, but the wife contended that it was always intended that the property was an investment and that she and her new husband should regain possession of it when the children were older.
To cut a long story short, the parties were unable to resolve the issue of what should happen to the property, and therefore in February 2016, the husband issued his financial remedies claim. The wife then filed her application to have the claim struck out, on the grounds that because of the delay it was an abuse of the court’s process.
Mr Justice Baker did not agree. The parties’ lives had not been completely separate from the breakdown of their relationship. In view of the support that the wife had been providing to the husband, the delay was not unreasonable. Further, he did not regard the passage of time since the breakdown of the relationship as a factor which prevented the parties from having a fair trial.
He said:
“Very unusually, [the husband’s] claim is based not on the level of support he received during the marriage but rather on the level of support provided subsequently. Although the parties’ emotional and personal relationship ended long ago, their financial relationship has continued almost without interruption.”
The husband was entitled to bring his claim – there is no statutory limitation period within which such a claim must be made. This was not to say that his claim was likely to be successful – the prospects of success were not relevant to the issue of whether the claim should be struck out, although the delay may be relevant to whether or not the claim ultimately succeeded, and if it did, to the value of the award the husband received.
The husband’s claim was fixed for hearing in April (which is no doubt the reason why this judgment has only just been published). Unfortunately, we are not told the outcome of the hearing if, indeed, the matter has been concluded.
You can read the full judgment here.
Please note that in the above summary I have used the dates mentioned in the judgment, although I’m not sure if they are correct, as the report states that the hearing before Mr Justice Baker took place in December 2016, when the judgment is dated January this year. I assume the hearing took place in December last year.
This is a subject dear to my heart (not for personal reasons!) and I take a strong view.
Compare personal injury claims where the real defendant is an insurance company. A very wise judge said more than two hundred years ago that a corporation has “no soul to be damned and no body to be kicked” and he could have added “and no private life to get on with”. But a p.i. claim by an adult must normally be brought within three years.
It is important that ex-spouses can put the past behind them so we should apply the same law to claims such as this, but without the power of extension – you generally know that you have been divorced! In fact the only exception should be in favour of the Respondent against whom an order was made to dispense with service; she, usually she, should have until some stated time, perhaps a year, from when she knew or could be taken to know about the divorce.
The time should run from decree nisi and should be ended by the issue of a notice from the court with a seal date so that there can be no arguments; and that notice should then be served within a month, with no power of extension. Cross-claims should be brought at the same time or not at all.
Moreover: potential paying parties, usually husbands, should be allowed at any time after (say) three months from the nisi, or even perhaps at any time after the absolute, to give the wife (usually) three months’ notice to proceed – or not. They, too, have lives to get on with.
None of this would stop the court adjourning the proceedings in the rare case where a short adjournment might make a big difference – although if the aged relation then makes a new will that strategy might back-fire. But in ordinary cases that would lead to an early and final resolution of the issues between ex-spouses.
Add to that a starting point based on equality, not self-perceived needs – with a postponement on Mesher terms where necessary to protect minors – and a vigorous Part 36 jurisdiction (which works in Inheritance Act cases) – and we can put the family lawyers out of business!