Dismissing Financial Claims to Finality
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 “Closing the Door on the Past” and “Vince and Wyatt – Electric Shock for the Unwary”
I regularly meet people who often boast that they were able to deal with their divorce without the need for a Solicitor to be involved and they go to great pains to elaborate on how much that has saved them in legal fees.
I personally find it curious to be frank. On such an important issue, they are resorting to DIY divorces. I think this I – can – do – it – myself – attitude will in many, many cases end in tears. That is certainly my experience of it. I know for a fact that no matter how easy it seems to undertake an appendectomy I would rather always have a surgeon performing that operation. Ok, so conducting a divorce is not as complicated as surgery but I make my point by saying that I would not repair the brakes on my car even though is possible.
Whinge over and onto the legal stuff.
Most people when they undertake their own DIY divorce often with a divorce pack bought off the shelf for 49p is that they assume that the conclusion of the divorce, that is, obtaining decree absolute, is the conclusion of all matters between the parties.
Leaving issues relating to any children aside, what about the finances?
So the smarter ones will consider the financial issues that need resolving between the parties and come to an amicable arrangement. So far so good.
They then write in their best handwriting the terms of that agreement (and I will not even go into the nightmares that can produce) and they both sign it. The very smart ones will even have it witnessed by the next door neighbour.
The problem with that (Vince v Wyatt being a developed exception to that) is that the agreement is almost not worth the paper it is written on so to speak AND can create legal nightmares that need sorting when (and invariably it is “when” and not “if”) a dispute arises of over interpretation or a while plethora of other reasons.
First and foremost the parties cannot bind a court and so the agreement is not really legally binding.
Imagine this scenario: The parties do a DIY divorce, then they write up an agreement on the finances and both sign and have it witnessed. One party decides years later that they are not happy with that agreement – what is to stop them issuing a financial claim to conclude the financial part of the divorce (known as financial remedy)? Well, the reality is not a lot is stopping them.
There are some technical niceties which I will not elaborate on here (such as what is known as a Xhydias Agreement which could alter the general position that I am espousing but you get the main drift of what I am trying to convey).
The reality is that you need to end the marriage by way of a decree absolute of divorce (we all know that) AND you need to end the financial relationship by way of a consent order (if everything is agreed on the finances). Only a court can bring the financial part to a conclusion.
It is precisely for this reason that Ms Wyatt made her claim for financial remedy around two decades later and WON her case (in simple terms at the first shout and lost only on appeal because of the tenacity of Mr Vince.
The outcome of that case and what you would probably undoubtedly wish to achieve too, would be for each party never to be able to make a further claim against the other whether during their lifetime or even after their death.
(Yes, even after death a spouse or FORMER spouse can make a claim against the estate of their deceased spouse/former spouse).
To close these doors as I call them, as most would say to make the deal “in full and final settlement” you need that consent order dismissing all claims each party has against the other.
I am not sure you will find that in a DIY pack for 49p.
The moral of the story is that Mr Vince found out the hard way; do not make the same mistake.
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
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