A v B [2018] EWFC 4
Family Court, 26 January 2018, Baker J
The couple were married in 1983 and had two adult children together. The wife had a successful career and was the main breadwinner. The husband claimed to have been the primary carer of the children during the marriage. The couple separated in 1991 and shortly afterwards the husband petitioned for divorce: decree nisi was pronounced in April 1992 and made absolute in June 1992. The husband did not issue any separate application for financial provision at the time of the divorce petition.
At this time, the couple owned the family home together, but there was little if any equity in the property. They did have four endowment policies. According to the wife, the husband received two of these, with a combined value of £48,000 plus £10,000 which the wife had received as a redundancy payment, making a total of £58,000 and she retained the balance of their assets, in the form of two more endowment polices, with a combined value of £38,000. According to the husband he did not retain the endowment policies and it was not until some later that the wife paid him £10,000.
The wife then moved into rented accommodation with her new partner, whom she later married, and the husband remained in the former matrimonial home with the children. The wife continued to support the household financially, paying the mortgage repayments and all the household costs until 1992, when the family home was sold. The husband and the children then also moved into rented accommodation. The wife continued to pay maintenance until 2009, by which time they were 23 and 19, although in the meantime she had retired from work, and was reliant on her new partner (who had benefited from a company buyout) to provide these funds.
In 2006, the wife and her new partner agreed to provide £400,000 to enable a house to be purchased for the husband the children to occupy. Shortly after the husband and the children moved into this home, the elder child was seriously injured in a car accident. The husband then gave up work to care for the injured child. Subsequently, the wife and her new partner spent over £200,000 on an extension to the property; the husband was able to rent out rooms in the enlarged property, retaining the income for himself. The husband’s new partner moved into the property in 2009. In 2012 the husband and his new partner spent £3,500 on a workshop in the garden at the property. In 2013 the husband remarried and shortly afterwards sent an email to the wife explaining that he had decided to make a will and had been advised that as things stood he needed a ‘right to occupy’ and there needed to be some provision for what would happen to his new partner in the event of his death. The wife’s new partner wrote back explaining that in the wife’s and his view, the property had been purchased to provide a home for the children and therefore the husband, until they began independent lives, and that for financial reasons it would need to be sold in 2014 or 2015. The eldest child had now moved in with the wife and her new partner. In 2014, the wife’s new partner was made redundant and lost shares in his business. In March 2015, the wife’s new partner asked the husband what his plans were, and the husband replied that he and his new partner had found somewhere to move to, but
that it needed a lot of renovation and that it would not be possible to move until late 2016/17. Correspondence followed in which the wife’s new partner explained that this was later than he and the wife had thought but that in order to be as flexible as possible, the moving date would be February 2017, provided the property could be marketed while the husband and his new partner were in residence. The husband replied that this was ‘great’ and that he really appreciated the understanding shown.
The husband then took legal advice and was advised that he could pursue financial claims under the Matrimonial Causes Act 1973 if they had been made in the original divorce petition. When he approached the wife in January 2016 to suggest mediation about a financial settlement, the wife issued a s 21 notice requiring the husband to vacate the property by March 2016. In fact, the husband had already issued a Form A seeking all forms of financial relief. In May 2016, the wife filed an application to strike out his claim on the grounds of lack of jurisdiction, under s 28(3) of the MCA 1973 and FPR 4.4(1)(a) and (b).
The petition itself was not available, but the husband’s solicitor at the time of the divorce proceedings had provided a statement saying that it was her personal practice to tick all the boxes in the petition, including the prayer for ancillary relief. The wife abandoned her claim under r 4.4(1)(a) but argued that the claim should be struck out under r 4.4(1)(b).
FPR Practice Direction 4A, as amended, provided, inter alia, under paragraph 2.2 that “an application may fall within rule 4.4 (1)(b) where it cannot be justified, for example because it is frivolous, scurrilous or obviously ill founded”. Paragraph 2.5 provides that the examples set out above are intended only as illustrations.
The High Court judge refused to strike the case out but exercised his case management jurisdiction to order an abbreviated form of hearing.
This was a highly unusual case. Neither counsel had cited any authority in which a claim for financial relief after decree had been made 20 years after the divorce, where one party had voluntarily provided ongoing financial support to the other throughout that period. The wife’s decision to apply for an order striking the claim for financial remedies was propelled by the absence of evidence that a claim for financial relief had been included in the petition. Once that point had been conceded, the wife was relying on abuse of process, and, the cohort of cases in which a claim could be struck out for abuse of process was limited, in the light of the Supreme Court decision in Wyatt v Vince [2015] UKSC 14.
The important differences between the facts of Wyatt v Vince and those of the present case did not assist the wife in her application to strike out the claim. In the present case, the parties’ lives had not been completely separate since the breakdown of their relationship. On the contrary, their lives had remained interconnected to an extent rarely encountered after divorce in this country.
Quoting from Wyatt v Vince:
“in order to sustain a case of need, at any rate if made after many years of separation, a wife must show not only that the need exists but that it has been generated by her relationship with her husband”.
In the present case, the husband contended that his need now arose because the wife had withdrawn significant material support which she had provided for a substantial proportion of the period since their separation and, on his evidence, had promised would continue indefinitely. In effect, he asserted that the need has been generated by his relationship with the wife, which started during the marriage but continued for many years after it came to an end.
Without reaching any conclusion on the factual disputes between the parties, it was impossible to say that the delay was unreasonable. If the facts were as the husband alleged, it was not unreasonable – nor, to adopt the word used in Birkett v James, inexcusable – for him not to have made a claim before 2016. In short, his case was that (1) the wife and her new partner had promised him that he could live in the property for as long as he wanted; (2) he had relied on their promise; (3) they had now broken their promise and he had suffered, or would suffer, loss as a result: (4) he had now discovered that he has a claim outstanding under the MCA 1973, and (5) it had not been unreasonable for him not to pursue the claim before now because up to this point he had not had to think about litigation as he had relied on the promise about his unlimited occupation of the property.
Furthermore, on the facts of this case the passage of time since the breakdown of the relationship was not a factor which prevented the parties having a fair trial. Very unusually, the husband’s claim was based not on the level of support he received during the marriage but rather on the level of support provided subsequently. Although the parties’ emotional and personal relationship ended long ago, their financial relationship had continued almost without interruption. As a result, the principal focus of the forensic enquiry would not be on the events of the marriage but rather on matters that had occurred since it came to an end. The evidential dispute will traverse a number of years, but that is not at all unusual in matrimonial financial disputes. Many such disputes concern long marriages and the court is obliged to consider evidence about what happened years, even decades, ago. The marriage in this case was not a long one, but the financial relationship between the parties had continued for over 30 years.
The husband was entitled to bring a claim for financial relief at any time after the filing of his petition. The absence of any statutory limitation period in the MCA for the bringing of such claims, and, as Lord Wilson pointed out in Wyatt v Vince, the absence of any power provided by statute or statutory instrument to dismiss summarily a claim on the grounds that there were no reasonable prospects of success, must be regarded as deliberate rather than accidental. The court must therefore assess any application to strike out the claim on grounds of abuse without reference to the prospects of success. Having carried out that assessment, and for the reasons set out above, the wife had not demonstrated that the delay in bringing the claim was unreasonable or that the claim was an abuse of process.
Whether or not the husband’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 was occupied by the husband – and the arguments deployed on behalf the parties. It was important to add, however, that, in considering an
application brought many years after the breakdown of the marriage, the court would, in carrying out its analysis of the factors in s.25, inevitably consider the delay and its consequences for the parties, along with any other relevant matters that had occurred in the intervening period. Although the factors identified by the wife did not mean that the husband’s claim should be struck out as an abuse of process, they were plainly relevant to the merits of the husband’s claim for financial remedy. The wife’s assertion that, had she realised that the husband would or might pursue a claim for financial relief, she would not have provided him with the degree of financial support that he had enjoyed in the past 24 years was plainly a factor which, if it was accepted, the court must take into account when considering whether to grant the husband any financial relief and, if so, the quantum of that relief. However, that assertion did not entitle the wife to succeed on a summary application to prevent the husband from bringing his claim altogether.
Equally, the circumstances of this case fully justified the court using its case management powers to arrange an abbreviated hearing of the claim. Counsel had agreed that, in the event of the court declined to strike out the claim, they would agree directions for an abbreviated hearing to last no more than one and a half days.