News article published on: 25th March 2019
This unusual case demonstrates the risks of failing to bring a financial claim on divorce promptly, or, from the Husband’s perspective, failing to dismiss the other party’s financial claims at the time of the divorce.
The case concerned a couple who married in 1981 and separated in 1984. They had one child, born in 1981 who was therefore an adult by the time that the financial proceedings started in 2011. During the relationship, the parties had no significant assets and they finally obtained their decree absolute in 1992. There was no documentary evidence that the parties had concluded their finances at the time of the divorce which meant it was open to either party to make a financial claim against the other, which the Wife subsequently did.
The Wife started a new relationship and had 2 further children. The Husband went on to start a very successful business which came to be valued at £90 million. The Wife applied for financial relief from her former Husband in 2011 including an order for a costs allowance to enable her to meet her interim legal costs.
The Husband applied to strike out her claim under rule 4.4(1) of the Family Procedure Rules but was unsuccessful and was ordered to provide the Wife with an allowance for her legal costs so she could continue to pursue her claim. The Husband appealed to the Court of Appeal.
In the Court of Appeal the Husband was successful and the Wife’s claim for financial relief was struck out.
Although there is no time limit for the bringing of applications for financial relief, the court held that it was an abuse of process for the Wife to bring such a claim many years after the divorce when it had no real prospect of success.
The court appeared to caveat the outcome by saying that strike out claims would only succeed in rare and exceptional cases. However, the case demonstrates the risks of not pursuing a financial relief claim in a timely fashion. Had the Wife applied while the parties’ child was still a minor, the outcome could have been very different. Similarly, from the Husband’s perspective, this case demonstrates the importance of finalising the finances of the marriage promptly on divorce and formally dismissing financial claims in a court order, to prevent the risk of potential “nuisance claims” being made in the future. There is no guarantee that all the costs in defending such claims would be recovered by the successful party, particularly if the circumstances are more finely balanced than in this particular case.