I have written several times on this website about non-matrimonial assets, most recently about assets accrued post-separation, and we now have the Supreme Court decision in Standish to help us with the issue generally but, not only are assets acquired post-separation potentially in a different category, they also often arise in the context of a delay since the separation, sometimes a long one, and therefore what also arises is the question of whether that factor alone, delay, may alter the way in which the Court determines the outcome. My opponent in a recent case certainly thought so, in circumstances where the delay was not very long and the reasons fairly understandable but, as we settled the case we never got to test the point, and hence my curiosity and this article.
The keen reader of this website might well have noticed that Edward Kenny’s recent article on Lin v Par [2025] EWFC 401 touches on this point but, the decision in that case hinges upon the fact that the parties had reached a Xydhias agreement incorporated into a draft consent order, that there were no vitiating factors, that it had been implemented, that it was fair and that there was no good reason not to hold the parties to it, with, in His Lordship’s words, the above conclusion being simply “all the more so” because 20 years had also passed. That is not to say that Peel J’s comments are not instructive, they are, but in looking to see whether delay can in itself alter the outcome, it is necessary to look further.
The leading authority is the Supreme Court decision in Wyatt v Vince [2015] UKSC 14, [2015] 1 FLR 972: The wife applied for financial remedies 19 years after the divorce. The Court of Appeal struck out the wife’s application but the Supreme Court allowed her appeal and sent the matter back for an FDR. Per Lord Wilson [32] (my emphasis):
“Consistently with the potentially lifelong obligations which attend a marriage, there is no time-limit for seeking orders for financial provision or property adjustment for the benefit of a spouse following divorce. Sections 23(1) and 24(1) of the 1973 Act provide that such orders may be made on granting a decree of divorce ‘or at any time thereafter’. Yet there is a prominent strain of public policy hostile to forensic delay. The court will look critically at explanations for it; and, even irrespective of its effect upon the respondent, will be likely, by reason of it and subject to the potency of other factors, to reduce or even to eliminate its provision for the applicant. Nevertheless, it remains important to address its effect upon the respondent. In some cases, albeit not in the present, a respondent can show that he has assumed financial obligations or otherwise arranged his financial affairs in the belief that the applicant would make no claim against him and that he has done so in a way which, even if it were possible, it would not be reasonable for him to put into reverse. Sometimes, instead, he can point to factual issues of which the dimming of memories or the disappearance of witnesses over the period of the delay no longer permits accurate determination. But, were this wife’s application to proceed to substantive determination, the need for resolution of factual issues would be slight. All that is said on behalf of the husband in the present case is that the delay has deprived him of the chance of establishing that, around 1992, the wife’s financial applications were dismissed; but, as already indicated, a dismissal is so unlikely that it should be entirely discounted.”
As the appeal that was allowed in Wyatt v Vince was against the Court of Appeal’s decision to strike out the wife’s claim, with the case being sent back for an FDR appointment, it is therefore perhaps strictly only authority for the proposition that there is no time-limit on making an application. Nonetheless, there are of course also the views expressed by the Supreme Court emphasising that public policy was against delay and that therefore the Court is likely to consider reducing the claim as a result, particularly if the respondent has arranged his affairs accordingly in a way that it would not be reasonable to reverse. On the other hand, the Supreme Court also emphasised the wealth of the husband (a business worth £57m) and his failure to support wife and children and suggested that the wife had a real prospect of moderate success in achieving an order allowing her to purchase a more comfortable and mortgage free home.
A similar situation had influenced the Court of Appeal’s decision in Pearce v Pearce [1980] 1 FLR 261 in which H’s appeal was dismissed in circumstances in which W received a lump sum 9 years after divorce with the fact of the husband having made no contribution to W and children being a key point.
Also prior to Wyatt was M v L [2003] EWHC 328 (Fam), [[2003] 2 FLR 425, Coleridge J: This is an unusual case: W applied for financial remedies 33 years after separation and 30 years after the divorce but nonetheless received a substantive order including £150,000 of capitalised maintenance, 50% share in a property owned by H of which she was the tenant and a further £30,000 lump sum to repair the property. The two key points leading to this decision were firstly, that the original divorce had been in South Africa and because of that made no provision for the wife, so she was not seeking a second bite of the cherry and secondly, that W’s contribution as a mother justified full recognition and she had remained financially dependent on the husband, alongside which the wife had a need which if not met would lead to hardship and the husband still has a liability arising out of the marital relationship. However, interestingly, it was also held that it would be unfair to the husband to divide his capital on the basis of modern precepts but rather to base the award on what it would be reasonable for the Wife to have for her maintenance, which he could afford.
After Wyatt came Briers v Briers [2017] EWCA Civ: W applied for financial remedy 11 years after separation and 8 years after decree absolute. The main issue before the Judge was whether the parties had reached a full and final settlement through arrangements made in the three years following decree absolute whereby W gave up her interest in the business and received the family home. The Judge found that there was not a binding settlement and the Court of Appeal agreed with that. The husband’s appeal was also based partly on the Judge’s insufficient regard to the wife’s delay and that too was dismissed on appeal but, that was because the Judge had taken into account the wife’s delay, had found that there was no real explanation for it and had discounted the wife’s share in equality because of her delay to 27-30%. That decision was approved by the Court of Appeal [19-26] with Sir Ernest Ryder (P) giving the Judgment and saying at [25] (my emphasis):
“ ….. the judge was right in his treatment of delay as a factor in the overall exercise that a judge has to undertake on an application for financial remedy. I do not for a moment disagree with the propositions culled from first instance authorities that delay may reduce the fairness of an entitlement or that the diligence of a party in prosecuting a claim may affect the proportion of any share that party receives. None of the first instance authorities can or does go so far as to suggest that the question of whether a non-matrimonial post-separation accrual can be shared is excluded by delay. Each case is of course dependent on its facts.”
That last comment about non-matrimonial post-separation accrual may well now have been superseded by events but, in terms of the limit of this article, this is a decision in which a reduction purely for delay was approved by the Court of Appeal and therefore on its face appears to answer the question posed.
A v B [2018] EWFC 45, [2018] 1 FLR 17, Baker J: The husband applied for financial remedies 24 years after the divorce. Baker J dismissed the husband’s application because the parties had reached an informal but fair agreement shortly after the divorce and held that, whilst financial remedies can be awarded many years after the divorce, this case could be distinguished from Pearce and Wyatt because of the agreement that had been reached, the fact that there was substantive provision for the child carer (husband) and substantial child maintenance. Further, the husband had not suffered a disadvantage entitling compensation and the wife had arranged her financial affairs on the assumption that the husband would not make a claim against her. The delay was precisely because both parties considered that they had resolved their financial issues shortly after the divorce [82-90].
HAT v LAT [2023] EWFC 162, Peel J: This is an interim decision about interim maintenance and legal services provision and makes for useful reading on both those points but, Peel J also touched briefly on delay because W’s application was made 30 years after the parties had entered into a deed of separation, 25 years after decree absolute. His Lordship’s interim/preliminary view was that there were no vitiating factors in respect of the deed of separation, and it had been implemented but, H was extremely wealthy and had gone a lot further than the deed required in providing W with over £2m towards the purchase of a house and financial support for over twenty years, peaking at about £100,000 p.a. On delay His
Lordship said [28]:
“(i) delay in bringing a claim for financial remedies is not by itself a jurisdictional or procedural bar to making a claim;
(ii) delay does not automatically, on the merits, disentitle the applicant to financial relief, but it will be a factor (potentially a highly material one) when weighing up the s25 criteria;
(iii) delay does not prevent the court from making interim orders, albeit I accept I should tread carefully and consider, in the exercise of my discretion, whether the claim has prospects of success, or is so spurious that there is no justification on the merits for the making of an interim order.
His Lordship’s conclusion was that the wife’s claim was not spurious but that it is “likely to be significantly curtailed by reason of the deed of separation and the passage of time before W initiated her claim.” Because the wife had become accustomed to the maintenance that H had paid, it would not be fair for that to cease and an order of £8,500 p.m. was made, as was a substantial LSPO.
Coming back to Lin v Par [2025] EWFC 401, Peel J: It is not without significance that Peel J does not mention delay until after His Lordship has dealt with all the matters necessary to reach the decision and only in the conclusion section of the Judgment and, as above, it was not necessary to the decision to add delay as a factor. In the conclusion, His Lordship notes that, unlike in Wyatt, an agreement had been reached and there were no Edgar factors to vitiate it so that the husband can point to both the delay and a clear Xydhias agreement and a draft order freely entered into and implemented by the parties, that the wife would have to show a causal link between her needs and the relationship (which she did not), that there are no children of the marriage, no ongoing contribution to the relationship by either party after separation and that there is no good reason not to hold the parties to their agreement, whilst adding “that is all the more so because over twenty years have passed since the agreement”. The result was no order apart from an immediate clean break but the delay factor played a very limited role, if any, in that decision.
In conclusion, Briers v Briers (above) is authority for the principle that delay alone can justify a reduction in a financial remedy award but, as always, each case is dependant on its facts, and I would suggest that the cases mentioned above highlight the following factors: clearly, the reason for the delay; whether the parties thought that they had previously resolved their financial issues and whether the respondent had arranged their affairs in a way that it would not be reasonable to reverse; whether the application is an attempt at a second bite of the cherry; whether there are children and whether there are unsatisfied and/or continuing obligations, contributions and/or needs, particularly in relation to the children and carer.
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