Divorce v Religion – Round 2

This article addresses some concerns I raised on future challenges to the quadruple lock ….

http://www.theguardian.com/law/2012/jun/12/gay-marriage-church-england-argument

I think this is a well thought out well written piece that counters mine

I remain more convinced that a challenge is more likely in due course.

Time will tell

Vince v Wyatt

Vince and Wyatt – Electric Shock for the Unwary

Vince v Wyatt [2013] EWCA Civ 495

 

This article is part of a trilogy of articles – you may wish to read this in conjunction with “Dismissing Financial Claims to Finality” and “Closing the Door on the Past”

In the recent case of Vince v Wyatt ([2013] EWCA Civ 495 for all you boffins out there) the Court heard that Dale Vince and Kathleen Wyatt married in December1981. At the time both were receiving state benefits. They had a child in May 1983 and separated in February 1984.

In October 1992 Mr Vince and Ms Wyatt were divorced. At the time of the divorce neither party had any assets and both were receiving state benefits. Ms Wyatt in due course had a relationship with another man with whom she had children. Mr Vince also at some point thereafter married his current wife in 2006 with whom he has a son.

It is unclear whether any financial orders were made at the time of the divorce in 1992. Given the time which had elapsed, all the court papers apart from the divorce decree itself have been destroyed. The files of the solicitors involved at the time had also been destroyed as they are only usually kept for six years.

So they divorced in 1992. In 1996 Mr Vince founded Ecotricity, the world’s first green energy company which has since grown into a very successful business estimated by The Sunday Times Rich List to be worth £90m now.

Ms Wyatt made a financial claim to settle financial matters once and for all in 2012/2013 because of the (lack of) (proof of) failure to dismiss financial claims at the time.

The VERY common error most people make (and it seems, some Solicitors too) is that the divorce will end a financial relationship. It does not. That needs to be “divorced” separately.

The law relating to this point is covered in the article “Dismissing Financial Claims to Finality” so I will not repeat it here. But in summary, only a court order, done by consent (so neither party needs to turn up to court) or a court order ordered by the Judge after litigation, can dismiss claims between two (former) spouses. Any other agreement between the two (former) spouses, even if signed, witnessed and concluded by the words “in full and final settlement” or words to that effect, in reality do not do that. So, either party can come back years later as this case demonstrates.

So Ms Wyatt did just that, she made a financial claim years later.

When the matter went to court, the Family Division of the High Court declined to strike out Ms Wyatt’s claim as an abuse of process and ordered that Mr Vince furnish Ms Wyatt with a fighting fund to bring the claim against him.

Yes, you read it right first time: Mr Vince had to pay Ms Wyatt money to fight her case against him. Ouch.

(Fortunately – depending how you look at it), in a unanimous decision, on appeal, the Court of Appeal upheld Mr Vince’s appeal against a judgment given in the lower court.)

The Court of Appeal ordered that Ms Wyatt’s claim for a housing fund and capitalised lifetime maintenance should be struck out because at the time when Ms Wyatt should have brought her claim, neither party had any money and both were in relationships with new partners. Mr Vince’s present wealth was generated years after the parties divorced as a result of the success of the Ecotricity business.

In my humble view, the outcome was a just and fair outcome. It was a good job Mr Vince had the money and the sense to appeal. Many others may not have been so lucky. Phew.

Mr Vince understandably (but incorrectly) expected that having separated from his ex-wife in 1984 when he was a penniless 22 year old, he should not be required to pay her a vast sum of money simply because years after she divorced him in 1992, he had built a successful business. Fortunately, the Court of Appeal agreed with him unanimously.

Giving the lead judgment for the Court of Appeal, Lord Justice Thorpe said:

“The facts of this case are extreme. Impecuniosity has been the experience of all of the wife’s adult life. Both the men with whom she has entered into family life were seemingly equally impecunious.

Her husband was the most improbable candidate for affluence. The wife no doubt can appeal to his sense of charity but in my judgment he is not to be compelled to boost the wife’s income by the exercise of the jurisdiction under the Matrimonial Clauses Act 1973. He is not her insurer against life’s eventualities.”

In a concurring judgment, Lord Justice Jackson said:

“In my view the court should not allow either party to a former marriage to be harassed by claims for financial relief which

(a) are issued many years after the divorce and

(b) have no real prospect of success.

It must be an abuse of the court’s process to bring such proceedings…The present case is a classic example of such abuse.”

The Court also held unanimously that Mr Vince should not have been ordered to fund his ex-wife’s legal costs of bringing the claim against him. Lord Justice Thorpe said that he would have allowed Mr Vince’s appeal against that aspect of the order even if he had not allowed his appeal against the entire claim being allowed to continue.

Agreeing that Mr Vince should not in any event have been ordered to pay Ms Wyatt’s costs, Lord Justice Jackson said:

“If the deputy judge’s order stands, the ultimate result will be that

(a) the wife recovers nothing,

(b) the husband pays all the costs of both sides and

(c) the husband has not an outcome which the court can contemplate with equanimity, however wealthy the husband may be.”

Whichever way we wish to dissect and interpret the language and implications of this ruling, the simple fact of the matter is that to fail to dismiss all claims, whether rich or poor, old or young, is a folly.

You may have divorced many years ago and be in a similar situation, in that you are in a new relationship or marriage. You may not have dismissed all financial claims as Mr Vince ought to have. You may therefore be potentially exposed to a claim by your ex-spouse.

How you manage that is likely to require the expert guidance of a qualified, specialist Family Solicitor.

Ignore this case at your peril or you may be in for a nasty shock.

 

This information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitor before decisions are made and before you embark on a certain course of action.

Shak Inayat

Solicitor

0207 183 2898

Business Banking – Interest Rate Swaps

This was inevitable

I have been suggesting along with many others that these business banking swaps were likely to be a massive thorn in the side of the banks.

That in due course the claims that would/will be made against the banks for mis-selling these swaps will make the PPI Claims look like peanuts.

See this interesting article

http://www.lawgazette.co.uk/people/roundtable-financial-mis-selling/71677.article

(full rights acknowledged)

Shak