When is it really over? Striking out financial remedy applications in the Family Court

The current position in the Family Court is that there is no limitation period preventing an ex-spouse from making a claim for financial remedy years, and even decades, following divorce. This can deprive parties of financial certainty, impacting on life post-divorce and potentially putting strain on new relationships and families.

However, at the beginning of December the Supreme Court will be hearing an appeal in which it will consider the principles for striking out financial remedy claims when there is delay in family proceedings.

The background

The appeal is from the case of Wyatt v Vince. The parties married in the 1980s, separated after almost 3 years, and a Decree Absolute was pronounced on 26 October 1992. The wife then made an application for financial remedy on 19 May 2011. At this point the parties had been separated for 30 years and divorced for almost 19 years. In the interim period both parties had gone on to have children with new partners. In the course of the marriage they had neither assets nor income; however, in subsequent years the husband had gone on to establish himself as a successful entrepreneur and had amassed a substantial fortune.

The legal issues

Key issues for the court to consider will be:

  1. The extent to which the delay in bringing an application can provide a basis for strike out, if at all.
  2. Whether claims in the Family Court should be decided in line with summary judgment rules in civil proceedings, or whether different principles apply.

In civil proceedings the court has the power to strike out a claim that has ‘no real prospect of success’ and where there is ‘no compelling reason’ for the case to go to trial. These provisions are not directly reflected in the Family Procedure Rules, which only provide that an applicant will have ‘no reasonable grounds for bringing an application’ where, for example, applications are ‘incoherent and make no sense’, ‘do not disclose any legally recognisable application’ or are ‘frivolous, scurrilous or obviously ill-founded’.

3. If applicable, whether ‘no real prospect of success’ means no real prospect of a substantive award at all, or where the substantive order is unlikely to balance against the costs and use of court time.

Summary

For the moment, the decision of the Court of Appeal has suggested that the judiciary is keen to encourage the same ‘modern approach’ to litigation in family and civil cases.

It will be interesting to see what, if any, divergence from this approach is considered appropriate in family proceedings. Otherwise, as a result of the Supreme Court’s judgment, practitioners will be able to state with increased confidence that there will only be a limited period of time, after the divorce is made absolute, within which the lady of generous proportions will be permitted to sing her last.

This guide is for general information and interest only and should not be relied upon as providing specific legal advice.  If you require any further information about the issues raised in this article please contact the author or call 0207 404 0606 and ask to speak to you usual Goodman Derrick contact.