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Avoiding nasty surprises – Dotting I’s and crossing t’s

One of the points I am always very keen to stress when meeting people for initial advice is that they need to ensure whilst they are undergoing their divorce proceedings they also deal with the financial aspects of their case.

There is a common assumption that the divorce process is the beginning and end of the process.  It is not.   At its very essence all that a Decree Absolute – the final stage in the divorce process – allows is an ability to re-marry.  This assumption can cause difficulties in the future for parties.  Given it is relatively easy for parties to seek their divorce themselves, without seeing solicitors – particularly now there is an on-line service available – there are risks that some separating couples are storing up problems for the future.

However, irrespective of the divorce,  parties are still financially legally tied to each other.  This means, many years after separation and divorce, financial  claims can be made.

I always give the example of a gentleman I acted for many years ago who had been a career military officer.  As he approached the end of his military life he decided to get his affairs in order – which included dealing with the divorce and financial aspects of his separation with his wife some 17 years earlier.  As he had been in the armed forces all of his life he had a substantive pension which involved him receiving, apart from significant monthly payments, several very healthy lump sums.   Even though he and his wife had been separated for such a long time and their one child was now well and truly an adult (and self-supporting) – upon divorce and dealing with the finances, he was required on a financial application to settle upon his former wife a lump sum of £104,000 from his pensions.  A very bitter pill to swallow.

While the law has moved on and that example may not have ended in the same result, it is illustrative.

The ability of a former spouse to make a claim several years after separation and several years after Decree Absolute has recently been confirmed by the Supreme Court (formerly the House of Lords) in a case known as Wyatt v Vince.  The Supreme Court unanimously upheld the ability of Ms Wyatt to make financial claims many years after separation and divorce.

In that particular case Ms Wyatt and Mr Vince were married on the 18 December 1981.  They had a son together and Mr Vince also treated Ms Wyatt’s daughter from a previous relationship as his own.  They separated after a mere three years (1984) and divorced shortly thereafter.  Post separation Mr Vince pursued a new age travelling lifestyle.  It is common ground that the parties had virtually no money at the time of their marriage, relationship and separation.  Ms Wyatt raised the parties’ children in what the Court calls very strained financial circumstances.  In the late 1990’s Mr Vince became involved with green energy and became a multi-multi-millionaire.  In 2001 the couple’s son went to live with him.  The current situation is that Mr Vince remains a multi-millionaire and Ms Wyatt continues to live extremely modestly.

She made a financial application against Mr Vince.  The parties had previously formally divorced shortly after separation but the Court file was lost. Therefore it was unknown as to whether financial applications had been dealt with but it was thought not.

Initially Ms Wyatt sought an Order from the Court that Mr Vince pay her interim maintenance and also some monies to assist with her legal fees in pursuing her claim.  He asked the Court to strike out her claim on the basis that there was no probability that she would have any success – given the many years intervening since their separation, the divorce and the relatively short nature of their relationship.  Initially he was successful and the Court of Appeal did indeed strike out her claim.

Ms Wyatt appealed to the Supreme Court.  The Supreme Court confirmed that whilst her actual claims may be extremely modest – given the short duration of the relationship and given the long time since separation – it was not the case that she should not have the ability to make a claim and therefore she should be allowed to explore her claims against Mr Vince fully.

So whilst at the end of the day Ms Wyatt may receive very little indeed for her claim, her ability to pursue it remains open.

The difference between the two cases I have set out above are that in the first example the parties had not divorced but had merely been separated.  In the second case,  the parties had formally divorced; however, it is clear there is still exposure to financial claims until a financial order determines otherwise.

Therefore even if you are happy to divorce each other on an amicable basis, either on the Court’s on-line service or simply by filing the documents yourself in Court, please be careful to ensure that you also deal with the financial aspects of your claim at the same time.

Whilst the divorce process can be undertaken by you – the financial aspects of your case are much more complicated and I strongly suggest that you come and speak with me or one of my team, as to the potential ambit of you or your partner’s claims;  so that this can be dealt with contemporaneously with your divorce and so as to prevent any ‘nasty surprises’ in the future.

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