A Failed Application To Dismiss a Financial Remedy Application Does Not Have To Be The End Of The Story

Divorce & Matrimonial Finance

02 November 2018

  1. Some time ago now I wrote an article about the Supreme Court case of Wyatt and Vince. That case explored the issue of whether a party to a marriage can make a claim many years after the marriage has ended; to which in short, the answer was, Yes.
  2. The recent High Court case of A v B [2018] EWFC 45 revisited the topic revealing that the courts will deal with such cases on the facts. Baker J decided the case on the 14th June 2018. The unusual circumstances were that the parties were divorced in 1992 but the applicant husband (H) did not file his application for financial remedies until almost 24 years in February 2016. After separation the wife (W) continued to provide support to H as follows:
    1. W paid part of a redundancy package to the H,
    2. She paid off negative equity in the family home and paid maintenance for the children (who mainly lived with the H).
    3. In 2006 W provided £400,000 for a house (the property) for the H to occupy with the children.
    4. She later paid for a significant extension to the property.
  1. When many years later W indicated a wish to sell the property H brought a financial remedy claim seeking a lump sum order and a property adjustment order. W applied to strike out H’s claim and that claim was refused by Baker J in December 2016. (See A v B [2018] EWFC 4)
  2. At that earlier interlocutory hearing Baker J referred to Wyatt and Vince and to the summary of the ratio of it in the case of Roocroft v Ball[2016] EWCA 1009 at paragraph 45, being, so far as relevant to the case in discussion:
    1. The court’s power to strike out an application pursuant to FPR 4.4(1) is of ‘limited reach’ and has to be construed without reference to ‘real prospect of success’, it follows that an application is not an abuse of process for the purposes of FPR r.4.4(1) simply by reason of the fact that it has no real prospect of success.
    2. An application has ‘no reasonable grounds’ for the purpose of FPR r.4.4(1)(a) if it is not legally recognisable in the sense that it is incoherent or the applicant has remarried.
    3. There is no summary judgment procedure under the Family Procedure Rules. That does not however mean that the court is constrained from exercising its case management powers to direct that to be some form of abbreviated hearing following a provisional evaluation of the issues.”

Baker J held that H was entitled to bring a claim for financial relief at any time after the filing of his petition and that W had not demonstrated that the delay in bringing the claim was unreasonable or that the claim was an abuse of process. However he commented that whether or not H’s claim succeeded would depend on the court’s assessment of the evidence – in particular, crucially, the sharply conflicting evidence as to the basis upon which the property was acquired and occupied by H. Baker J was of the view that the circumstances of this case fully justified the court using it’s case management powers to arrange an abbreviated hearing of the claim, seemingly, on the basis of H’s contention that irrespective of the fact that his application was made many years after separation, his application should succeed on grounds of relationship generated need and or compensation.

  1. At the final hearing H had no assets in his own name other than a small pension whereas W’s assets were now valued at about £4.7m plus a pension valued at £780,000. The issues to be determined were whether it was fair in all the circumstances to make an order and, if so, what the form and content of the award should be.
  1. It was held that the circumstances did not justify any order for financial provision for H. Baker J held that, as the parties had reached an informal agreement as to their financial arrangements by the end of 1994, with which each was satisfied, this was a significant factor to be taken into account when considering any subsequent claim. Furthermore, the evidence of W as to the circumstances surrounding the acquisition and occupation of the property purchased in 2006 was to be preferred; she had been fair and generous to H in allowing him to rent out rooms at the property and keep the income, and to erect a workshop for his partner’s business in the garden. Although it was clearly established that, in certain circumstances, a party to matrimonial proceedings may be awarded financial remedies many years after divorce the present case was to be distinguished from cases such as Pearce v Pearce (1980) 1 FLR 261, M v L (Financial Relief after Overseas Divorce)  [2003] 2 FLR 425 and Wyatt v Vince [2015] UKSC 14, [2015] 1 FLR 972 for the following reasons:
    1. Unlike those cases, the parties here had, by 1994, reached a fair and amicable resolution of all financial issues that existed at that stage of their lives;
    2. H had been assisted by the W in discharging obligations to the children and their care and support had been shared between them;
    3. Although H had financial needs they were they were not on a scale experienced by the wives in those earlier cases and, further, they were not needs which the W could be fairly asked to meet;
    4. H had not suffered a disadvantage in his career so as to found a claim based in compensation but had been supported by the W at a level which enabled him to follow the career and life of his choice;
    5. Unlike the husband in Wyatt v Vince W had assumed financial obligations towards H and had arranged her financial affairs on the assumption that he could not and would not make any claim against her;
    6. The reason for the delay in bringing proceedings was that both parties considered that they had resolved the financial issues arising on their divorce in the informal agreement reached in 1994.


  1. Although the claim is a clearly an unusual one, there is no doubt that in certain circumstances a party may be awarded financial remedies many years after the divorce. The case demonstrates the narrowness of the strike out power. But, as Lord Wilson noted in Wyatt v Vince, where there is a long delay in pursuing a claim the court will look critically at explanations for the delay and will be likely, subject to other factors, ‘to reduce or even eliminate its provision for the applicant’.
  1. Baker J was robust in distinguishing Wyatt v Vince. Of significance in the case is the fact that he found overwhelmingly, that W’s conduct was generous and so the lesson is, even if there is failure on an application to strike out, it doesn’t automatically follow that substantive orders will be made.

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