Jersey: Open Season v Shivers Of Fear: Wyatt v Vince

You are divorced. You thought it was over and then you hear the names "Wyatt" and "Vince"; does a shiver run down your back or do you throw a party and go to see a family lawyer? According to the popular press coverage it depends on whether you are the party with money or not. Is this right?

As with many legal issues the answer is "it depends". It depends on the facts of the case and the history of the matter. This case received prominent press coverage. The couple in question lived a very modest, new-age traveller type existence before they divorced over twenty years ago. After the divorce the ex-husband became a billionaire through developing wind turbines. His ex-wife claimed that she was entitled to a portion of his wealth despite the length of time since their divorce. You would be forgiven for thinking, from the way that the case has been reported, that her claim for a seven figure sum was successful.

Despite the hype in the press what was actually decided by Supreme Court was simply that an application for ancillary relief or financial settlement made some time after a divorce should not be struck out as an abuse of process, as a matter of course. This does not mean that the application will be successful; just that the application will progress through the court system.

The Supreme Court took this view having carefully considered the Family Practice Rules, which govern when an application can be an abuse of process and how an application for financial settlement upon divorce is made. When a divorce petition is drafted the initial application on behalf of the person issuing the divorce is usually included within the divorce petition. The financial situation between the husband and wife is considered and if possible an agreement reached. If not the matter proceeds through the Court to a further application where the Court is specifically asked to consider what financial settlement is appropriate. This leads to a Court order setting out the financial settlement upon divorce. Usually, in the UK, this would include a clause that the order is in full and final settlement of capital claims and if possible income claims.

In Jersey, following the case of C v D (2013) there is a potential question mark as to the ability of the Court to make a "clean break" order, with some now arguing that the court should only make clean break orders with extreme caution while others believe that the position has not changed. Clearly what is required is further clarification by either the Court or ultimately new legislation.

If the husband and wife have no claim against each other or if they agree settlement terms then good practice is to draw up an order in those terms which is then sealed at Court. This ensures that in the future no application can be made against one party by the other if, for instance as in this case, one party becomes wealthy at a later stage.

Without such an order it is possible for the person issuing the divorce petition to issue an application at any time for the Court to consider financial settlement. If there is no agreement, then the Court, will decide the matter taking into account a number of factors set out in law. These include delay, the reason for the delay as well as length of marriage and contributions to the marriage including looking after the children. It will also consider when the wealth was created. What weight each factor is given depends on each case and will be for the Court to consider.

In the case of Wyatt v Vince, Ms Wyatt values her claim at £1,900,000. She bases that on her contribution in caring for the children of the family namely her son of whom Mr Vince is the father and her daughter who Mr Vince has treated as a child of the family. This claim refers to Ms Wyatt's contribution being very great given the poverty in which she raised the children and the lack of financial assistance from Mr Vince even when he became wealthy.

Mr Vince opposes this application on the basis of the delay of 22 years, the fact that his wealth came to him a long time after the end of their marriage, which was of short duration and that he states financial matters were dealt with at the time of his divorce from Ms Wyatt and a financial order had been made.

The possibility of the existence of an Order dealing with matters was an issue the Supreme Court had to consider. To reapply for financial relief would be an abuse of process if a final order had already been made. Normally there would be a copy of any order made however, both Mr Vince and Ms Wyatt did not have a copy of the order made and their recollections as to its contents were at odds. The court record has, it seems, been destroyed or lost. The Supreme Court had nothing before it. Mr Vince stated that there was a final order on a clean break basis while Ms Wyatt stated that she did not believe this to be the case. She said that there was an order whereby Mr Vince paid a notional amount to Ms Wyatt by way of maintenance given Mr Vince's his financial situation at the time.

The Supreme Court decided that no lower court would make a clean break order given the financial circumstances of the couple and the fact that there were children.

However, the Supreme Court also said that Ms Wyatt was being overly optimistic in valuing her claim at £1,900,000 although it also observed that there had been a window of time when Mr Vince had the financial ability to provide more to his ex-wife to assist her while she looked after the children. Given that Ms Wyatt had brought the children up in poverty, it indicated that the provision of a home that was comfortable and more suitable for Ms Wyatt and her remaining dependants might be sufficient. These indications given by the Supreme Court will not bind the court that will eventually decide the case.

The resulting press coverage is of women divorced many years ago coming out of the woodwork and issuing applications against their wealthy husbands. Whilst this may help sell newspapers it is wholly inaccurate. Most divorcing couples will have had financial orders dealing with their finances upon divorce. This decision does not enable them to have a second bite of the cherry.

There have always been odd cases where a financial settlement is sought sometime after the divorce and these cases are always difficult to pursue. This case is a procedural footnote and does not indicate anything new in how the courts approach financial orders. The Supreme Court has not made a decision as to the size of any award, if one is to be given at all, it has merely stated that the application in itself was not an abuse of process and the case will be returned back down the courts system for a substantive decision in the usual way.

The way to ensure that this problem does not affect you is to have a final order dealing with the financial agreement reached between you are your husband/wife even if that involves no more than an order confirming that you both are walking away from the marriage with very little or what belonged to each of you in the first place.

www.bakerandpartners.com

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