“It ain’t over ‘til it’s over.”*
The German national team may have reminded their Swedish counterparts of this famous saying over the weekend but it is, of course, applicable to many areas of human endeavour other than sporting events. Take, for example, financial remedy claims on divorce. I’m sure many non-lawyers believe that once the divorce has gone through, that is the end of the matter when it comes to any financial claims by either party against the other. The truth is far from it.
Unless they have remarried without making a claim, either party can pursue a financial remedy claim at any time, unless the court has dealt with or dismissed that claim. In theory, that means that there is no time limit: as we will see in just a moment, a claim can be made even after decades have elapsed since the divorce went through.
Regular readers may recall the Supreme Court case Wyatt v Vince three years ago, in which an ex-wife was allowed to proceed with a financial remedy claim some eighteen years after the divorce, and ultimately received a modest lump sum. Well, the recent case A v B can beat that. In it, the husband made a financial remedy claim twenty-six years after the divorce.
In A v B, however, the husband’s claim did not succeed, as the court decided that the circumstances of the case did not justify an order for financial provision for him.
What led to this different result? To find out we need to look at the facts of the case, which are a little complex.
The parties were married in 1983 and had two children. The marriage broke down in 1991 after the wife commenced a relationship with another man, with whom she moved in in that year. The husband remained in the former matrimonial home with the children, who were then aged 5 years and 18 months. It is the wife’s case that she continued to pay the mortgage and household bills, and also paid the premiums on four endowment policies in the parties’ joint names.
Shortly after the separation, the husband filed for divorce. Decree nisi was pronounced on 3 April 1992 and made absolute on 22 June of that year.
The wife was made redundant in 1992. She states that she received a redundancy payment of £30,000, from which she paid the husband a lump sum of £10,000. The husband did not recall receiving this sum.
The former matrimonial home was sold in 1994. The husband claimed that the wife had the equity in the property, but the wife claimed that it actually had a negative equity of about £6,000, which her new partner paid off.
The wife also claimed that the four endowment policies were cashed in at this time, and the proceeds divided between her and the husband. The husband was unclear on this, but his savings account passbook showed that he received a payment of £10,000 in September 1994, which the wife submitted was likely to be the proceeds of one of the policies.
The wife claimed that although there was no formal agreement or order resolving financial issues after the end of the marriage, she and the husband reached an amicable arrangement about the finances.
The children continued to live primarily with their father, and the wife continued to pay maintenance for them. She married her partner in 1999 and in 2001 he received substantial shares as a result of a management buy-out of the company for which he worked. In 2003 the wife was made redundant again and, in view of her husband’s significantly improved financial position, she decided to retire from paid employment, although she continued to pay child maintenance.
So far, so straightforward. However, things became a little more complicated in 2006 when it was agreed that the wife’s new husband would purchase a property in which the husband could live with the children. After the property was purchased, the wife and her new husband funded a significant extension of the property, spending, according to the wife, over £200,000.
In 2012 the husband and his new partner spent about £3,500 putting a workshop in the garden at the property, from which they operated a small business.
The husband himself remarried in 2013. After this, the parties entered into discussions about the husband’s right to occupy the property. He believed it was intended that he could occupy it for life, whereas the wife and her new husband claimed that it was only intended that he should remain there until the children grew up. The discussions broke down, and the husband issued his financial remedies application in February 2016.
The application was heard by Mr Justice Baker. He preferred the wife’s evidence, both in respect of the events around the time of the divorce and in respect of the circumstances surrounding the purchase of the property in 2006.
As to the length of time that had elapsed between the divorce and the issuing of the application, he found a number of ways in which the facts of this case could be distinguished from those of Wyatt v Vince (and other similar cases), including the fact that the parties had reached a comprehensive agreement concerning the division of their limited resources following the divorce, and that the husband had received considerable assistance by way of financial payment and other support from the wife throughout the children’s minority.
“I find that the reason for the delay was that both parties considered that they had resolved the financial issues arising on their divorce in the informal agreement that they reached in 1992 to 1994, and it was not until 2015 that [the husband] was alerted in 2015 to the possibility that his claim may have survived. Furthermore, and in contrast to earlier cases, [the wife] has made a significant contribution, including a financial and material contribution, to the care of the children throughout their childhood and beyond, and has provided additional support to [the husband] which has not only helped him to look after the children but also has given him a measure of freedom to choose his employment. In so far as [the husband] now has needs, they are not the consequence of the parties’ relationship, nor of his responsibilities to the children, but rather of the way he has chosen to run his life.”
He, therefore, concluded that the circumstances of the case did not justify an order for financial provision for the husband. That was the fair outcome of the proceedings. The husband’s claim was therefore dismissed.
Oh, and for anyone thinking that the result would have been different if the application had been made by the wife, Mr Justice Baker had this to say: “One distinction [between this and the earlier cases] without a difference is the fact that the applicant, in this case, is a man. There is no reason why a man should not succeed in such a claim if the circumstances justify an award.”
You can read the full judgment here
*Quote from Yogi Berra, baseball player