Financial Orders - Claiming Many Years After the Divorce

Hello. Welcome, everybody. My name's stuff to my mood, and I'm pleased to welcome you to today's bite Sliced section through daycare law destinies device I session where I'm taking you through financial orders on the issues surrounding claiming many years after the divorce. So would this session. I'm going to be taking you through the position of distribution of family assets where the actual financial order or financial remedy is being dealt with many years after the couple may have concluded there. Marriage I e. Through divorce or dissolution of the civil partnership, I'm going to be going through some of the key case Lord developments run in this area, bringing this in line with the concepts such a strikeout on the changes as a consequence to the family procedurals of 2000 and 10. So let's just put this into context by really looking at her one of the earlier cases on this area. And that's the case of wide convince. This was the 2015 Supreme Court decision on day. For just go through the facts of this one, you'll see the impact this has had and why This is, of course, of a significant issue at present disease in a case where, by the couple divorced some 22 years prior to the financial order proceedings being brought to the court 22 years previously. The decree absolute, have been pronounced on. Then some 22 years later, it was the former wife of brought proceedings against a former husband for financial order. Now the Supreme Court did express concern that falling on for the decree absolute some 22 years previously, two previous court at either destroyed or mislaid. Their file on the Supreme Court's view was that court should retain divorce files for 100 years but to allow them to strip most of documents, including the petition. After 18 years on a day to the final order, neither party had any document relating to divorce persons other than the decree Absolute so therefore, one couldn't be sure as to whether or not either party and actually and sure that the provisions on the divorce petition, as it was then provided for claim being brought enough in the future to avoid the possibility of two remarriage trap in the Section 28 of the much wanted cause that 1973 83 from going to effect. So in 2011 off former wife lodged an application financial order on Dender. Former husband Cross applied where he applied to strike at percent 4.4 off the family procedurals, not a high court. Dismissed the husband's across application and husband was ordered to pay in trump erotica payments to the former wife at the husband. Appealed on. Went to the quarter of your day, in fact, set aside the orders and struck out the wives Financial Order application Wife then appealed against the strikeout in the matter went to the Supreme Court on really one of the key questions that the Supreme Court had to contend with was to what extent is the jurisdiction off strike had possible in relation of financial order cases and in light of the factors that 1/4 of people, ever or they appropriately dealing with the matter in some so far striking that the former wife's application? And, um, this is a case where, by the husband wife they were married for just a few years. The wife was living in the property, which was born from the council on that she's relying predominantly on benefits. Husband had set up the commercial supply wind power. And he was the sole shareholder of the ICO Tress Ity Group LTD. Which provides green and electricity to about 70,000 homes on businesses across the UK so he was worth in the region of some £57 million Andi Hey lived with his second wife and child. Now Wife had lodged a divorce petition some years previously. In fact, in 1992 on, um, the question then was had. The wife included a petition to various four range of applications for financial orders of onset of relief, as they were known in those days on because the Supreme Court could not get access or where there was simply no divorce petition, a copy of kept Anyway, the court had to effectively make an educated guess. Andi presumed that because there was a child at the time that it would be unlikely that the wife would not have ticked direct, requisite box enabling therefore range of financial orders that we saw it in the future on because there was no evidence that there was a clean break between the parties, the court, they for her to take the view that there's no evidence to suggest that either of the parties are dismissed. It claim for future claims in the future, either do in a lifetime or indeed, through Section two of the inheritance provisions for From Independence Act of 1975. Now, what's the position? It would strike out where the court did say that Route 4.4 of the fpr does contain the power to strike out application of financial proceedings. This came to effect on the sixth of April 2011 on that even though it came into effect, it was no reported case on this on the court did say that the rule does not apply to proceedings related Children, but it provides that these possible to strike out a statement of case if it appears to court that the statement of Case discloses no reasonable grounds for bringing or defending the application or don't disdain two cases. Indeed, an abuse after courts process or always otherwise, like to obstruct just disposal off the proceedings and hear the question was, can you actually apply strikeout in a situation such as this, where it was being like it by the former husband that the wife, former wife, had no reasonable grounds for pursuing the action, and this was an abuse of the court's process. What a court did say that the CPR allows summary judgment if there's no reasonable prospect of success. But there is no provision for summary judgment in the family. Procedurals on the court has a duty to consider. In fact, in financial order proceedings order factors under Section 25 of M C A, which is inconsistent with any some MARY power to decide that neither party has a real prospect of success. So the 4 may on Danny affidavit were not an abuse of process, and therefore Route 4.4 in terms of strike at would not be applicable 100 facts. So they fought. A court did say that they would need to consider the matter and then decide based upon the strength of it, as to whether they would award. The former wife claims that its highlight the fact that because they had only cohabited for two years on the marriages broken down, may be as previously and also the fact that the wife had not contributed towards the husband's creation of his wealth as well as a considerable delaying, bringing the action. All of these matters would then weigh heavily towards limiting the award at the for my husband. But we're quite to pay the form wife, if indeed ordered. What a matter then went to trial by A to the high court to determine what Ward should be permitted, Given that the court did not permit strikeout on the facts on this was then the white on Vince 2016 High court case. Onda effectively, the matter has done listed for on FDR. No settlement was reached up the financial dispute resolution appointment. But then, a few months later, there was a compromise reached between the parties on that, of course, has been invited to approve the terms of the settlement effectively. The court was been asked to approve a clean break. The effect that her husband would be paying wife a lump sum off some £300,000 as full and final settlement on the court did say that they would approve this and had they not agreed between the parties then that this was likely to be in the region, that they were thinking of awarding at any event now because White and Vince. There were then some changes that came about as a result of the family procedure rules, and consequently we had the amendments that came in. So there was the Family Procedure Amendment Rooms of 2016 which came into effect on the sixth of April 2016 so that strikeout was amended so that Route 4.4 I eat a power to strike out a stamp case was amended so that when the court is considering whether to exercise the power to strike out to stay in case it must take into account, any written evidence filed in relation to the application will answer. This was there from particularly designed with the financial order applications in mind. So what other cases have come to light and since white events which have looked at the issue of bringing a claim for financial order many years after the divorce or dissolution, what does the case of Brize and Briers, which was only last year? This was a 2017 case here, the parties of divorced in 2005 and 10 years later, so 2015. This is one where bites the court did in fact, falling an application by the former wife make a financial remedy order in favour of the wife against a former husband has been have been ordered to pay his wife £1.6 million over 2.5 years in installments as well as a pension transfer and also like policy of some shares that this is what led to her husband appealing against this order. Onda. He argued that some 10 years previously, the parties had already in fact agreed as to the financial package. Previously, he said that they had reached agreement in 2006 on that that should stand even though there's no order dismissing future claims on, he relied upon various factors to support his argument, he said. There was a solicitor's noteworthy meeting. There was an unsigned separation agreement, which included in draft terms, deep proposed transfers, the wife's active participation negotiations on day or so at the fact that since then there have been no really disagreement between them until now, in 2000 and 13 onwards. But the court took a different view. The trial judge took the view that the fact supported that the wife felt intimidated but where the husband has put his position forward him, he almost impliedly threatened that and that she would not be able to claim towards a business. So the court felt that the agreement that they had reached was not robbed, Marker compliant in tears of the wife not having going to full information in order to make an informed decision. And therefore it was not a case where the court would be prepared to enable her husband to rely upon that agreement. What about the fact that some 10 years had lapsed since at the divorce, after which time the former wife then brought the action against the former husband? Well, this is where paragraphs 19 to 20 are particularly helpful in this case, whereby the court did say that there was a significant delay in that bring in the claim and was one of the major issues in the case. The court did say that, of course, White and Vince would be relevant here on, even though it would be contrary to public policy to, uh, not permit matters to be pursued if, unless you can bring them within the strikeout principles. If one has to look at the reasons why there was a delay on the court did say that the may potentially reduce or eliminate Onda war, depending upon what the reason was now here on the facts. The wife had no concrete explanation would delay other than really, in her words, the pressing demands of everyday life. Working, caring for the Children on the court also recognized the fact that the wife's own life took really a very different turn in that she ended a relationship with the man she had been for some time under the court did say that clearly, the reason for the delays a factor that can and should be taken account in deciding what award should be awarded. In particular, Paragraph 24 the trial judge had exercised discretion by looking at the fact that once needs were conceded to be provided, for there was to be a discounted a y shade and in equality of division off the assets because of deep responsibly. It on her part for the delay on the court, therefore gave the wife between 27 30% of the overall assets on the court accepted the court appeal, except that lower courts exercise of judge Main disrespect was appropriate. So you can see really the thinking behind this, where the court will look at meeting needs and then dividing assets there after the court were taken to counter reason why there was DeLay, which may just make suggest that there is a decrease in what the person who is not claiming should be getting on the facts once the assets are distributed. I distributed on the basis off entitlement or need, and the court did say that it would need to be based, of course, on need in that regard. And it was also argued, but a four husband that no family money went into business on its five going through his efforts. But the court did take the point, of course, significantly that the wife played an important role in the business dudes doing its infancy and, of course, the wives non motor contributions of justice. So non financial contributions were just as valid of husbands financial contributions. Okay, so you can see again a very important case which brings into play the considerations for any delay in bringing proceedings on. There was then the other case of Semana against him manner this was 2017 were here. It was an application that wife made under part three of the much more on Your Family Proceedings Act, essentially whereby under the much morning Family Streams Act from 1984 she was being in a financial relief in England wells following overseas divorce, the parties had in fact divorced overseas in Russia on the look on their had been warned, made in Russian relation to financial assets. But the former wife, who didn't reestablish yourself in England, brought a claim under the 1984 act. On the basis that the award in England s so in Russia had not been a complete award on, there had been no provision made for her in relation to certainly the yet of the marital home. The question the court had was, could they make an order in the 1984 act? If there has already been in order overseas on, it would be unusual to do so, and one would need to look at the facts to see whether or not it was in fact, an order made here. The fact that as the wife protector had not been an entire financial order made. And really there were aspects which had not been considered was not in itself sufficient on argument to justify English court and having jurisdiction on that basis. Because otherwise there is an argument that that could be is in every case and therefore potentially allow people to have second chances at getting a different ward toward the initial country of origin is that they would have awarded one of the other issues that was raised here was that relating to DeLay on the court Did ask us themselves. That's the question has to have delay or used the words of the statute length time, which has elapsed since the date of divorces to be factor. And this is again where the court very much refer to the white and Vince case bearing in mind a 20 year delay there, and that the court did say that if the wife was successful in pursuing and achieving an award than could have been a factor which could have been taken to account, looking at the reasons why they had been a delay in her bringing the action. So here on the facts, the court did say that the lower court uh, were correct insofar as considering the application but at the low court. Wrong and making a lumps. Morgan favored wife and they should have left the original Branton Place idea which original Russian order was made by way of agreement and that should have remained, were made in place and therefore was right smack affair so you could see the thinking behind that. That then begs me onto the last case. Today. This is the more recent just a case of A and B number two. This is a family court decision by Mr Justice Baker Onda. This leads on from the previous reported case earlier this year off a M b 2018 GW FC number four. On essentially this case handed down in the family court is a case where by the husband and brought a financial order action against the former wife and under the emcee A. And this is one whereby the circumstances were such that a couple in fact, divorced in 1992. But the former husband did not bring a claim against the former wife of financial order until some 24 years later on, before his application form A was not lodged until February 2000 and 16. Wife, former wife did apply and a 4.4 after family procedures to strike out the action. But the court did refused the application and the previous judgment in MBI in accordance with the proposed procedure set up in White, White so effectively the court had given directions from abbreviated hearing off the claim. So therefore this matter then proceeded on. They put a court and dealt with the matter insofar as allowing the claim to proceed. Now this is one where the couple have been together on day married, they divorced 1991 and shortly after separation, the, uh, the husband in this case, former husband and father petition for divorce hold on. A copy of the petition had been found. So again you can see this is very similar to the white Vince case in that regard on that it wasn't until February 2016 under former has been lodged. An application for financial order, he contended on application was included with the divorce petition, but there was no evidence for you to showed up a petition that included this, but nonetheless the court were prepared to allow the matter to proceed now. The um, former wife argued that some years previously there had actually agreed her settlement, although there was no formal agreement or order resulting financial issues. Before I said that they had reached an amicable agreement is to finances on, Um, this is where the former white tried to rely upon that now the court and famous replied deep principles under the emcee A in terms of the different types of orders that can be made. The court gave particular regard to the features set out within White Vincent. As I mentioned, the court was not prepared to allow the application to be struck out for the reasons that were set up essentially in White Vincent's Fars, allowing the court to consider the evidence in support in deciding whether any application in the strike had should be allowed under Rule 4.4 on the court on the facts did say that despite the absence of a formal agreement, the court did find that the parties did reached informal agreement concerning financial matters and appeared between 1992 to 1994 which the court satisfied was faring Audie Circumstances on even though the former husband said that he felt pressurised into into a second, exceptionally, Grange mints. There was no evidence the court felt that which really suggested that on as far as the court was concerned, they for the party's doing fact, settle their financial arrangements by the end of 1994 with all dissent itself doesn't preclude at each party from seeking financial relief under the emcee. A but of course, is a significant fact. Which needs to be taking into account on. The court did say that it is possible, of course, many it for a party off divorce to be awarded the financial order many years after divorce on Dumb. This is where, of course, the previous authorities were specifically referred to on the court did say that unlike in the case of White invents, for example, here, the parties had in fact reached comprehensive agreement, consented division of the limited resources falling on family divorces. This is somewhat quite different to white events. Secondly, the court was also satisfied that each off in this case, unlike the white Vince case, for example, each of whom was left king for Children during the intervening years with little or no assistance in this case at the former husband received no assistance by way of financial payment and under support from the former wife throughout the Children's minorities. On one of the other key provisions in this case, the court said, was that the former wife had assumed financial obligation towards the former husband on arranged their financial affairs on the assumption that, uh, he he would not bring any claim against her. On that, the court did say that this wasn't a case where, by, uh the reason for the delay was that both parties considered that there had resolved the financial issues arising on a divorce, an informal arrangement on such but instead, of course, satisfied that, unlike the White and Vince line of authorities, um, this wasn't a case where they really just wanted to put divorced to one side on really deal with matters afterwards. Unlike Surprise and Brides Case, where the pressure off really family life on really just wanted to move onward life was the reason why the former wife delayed in bringing the proceedings here, the court said in A and B. The court said that the reason for the delay was that both parties had considered that I had in fact result of financial issues arising on their divorce in informal arrangement that reached many, many years previously in 1992 to 1994. And it wasn't really until 2015 that the former wife was alerted to the possibility that the claim may have survived and that's really what led to the proceedings been brought. So this is quite different than White Line of authorities. But the court did say that the circumstances did not justify on order for financial provision for the former husband that had previously agreed on. The court was satisfied that what they had agreed was fair in the circumstances and therefore his application was dismissed. So you were not a court allowed his application to to proceed and therefore strikeout was not permitted on the facts, given the informal arrangement had reached on, the fact that there was enough data show it was right MCA complaint. The court was not prepared to allowed the application to proceed by way of a financial order and therefore the former husbands application was dismissed, O'Casey conceded. A number of issues we've looked at today and you can see that the rotational continues to develop insofar as the position with claiming for financial order. Years after the divorce hold has been in use for bite sized session for you. And thank you very much indeed for listening. There are some questions for you to look at afterwards. If that assists Andre. Thanks very much indeed. For listening. Thank you. Bye for now.