Wyatt v Vince

An application for financial provision or property adjustment following divorce has no statutory time limit. Delay may substantially reduce or eliminate any award, but it does not justify summary disposal merely because the claim appears weak.

Under Rule 4.4 of the Family Procedure Rules 2010, strike-out is confined to applications which disclose no legally recognisable basis, abuse the court’s process, or obstruct just disposal. The rule contains no summary-judgment jurisdiction based on prospects of success. A court determining financial relief must consider all the circumstances and the statutory factors, while using active case management to confine investigation and hearing time proportionately.

A costs allowance may be ordered where the applicant cannot reasonably obtain appropriate legal services through assets, borrowing, or a charge over an eventual recovery.

Wyatt v Vince concerned a financial-remedy application made in 2011, almost 19 years after divorce and about 27 years after separation. The former wife had limited means. The former husband had acquired substantial wealth long after separation. The divorce file was missing, but the Supreme Court regarded it as overwhelmingly unlikely that the wife’s financial claims had previously been dismissed.

A deputy High Court judge refused to strike out the application and ordered interim payments totalling £125,000 towards the wife’s legal costs. The Court of Appeal, in [2013] EWCA Civ 495, [2013] 1 WLR 3525 and [2013] EWCA Civ 934, set those orders aside, struck out the substantive application, and ordered partial repayment.

The issues were the scope of strike-out under Rule 4.4 of the Family Procedure Rules 2010, whether the application should have been struck out, the proportionate management of the claim, and the validity and consequences of the costs allowance order.

Lord Wilson, with whom Lady Hale, Lord Clarke, Lord Hughes and Lord Hodge agreed, allowed the appeal.

1. Rule 4.4 of the Family Procedure Rules 2010 must be construed without importing the civil summary-judgment test of whether a claim has a real prospect of success. The omission of a counterpart to Rule 24.2 of the Civil Procedure Rules 1998 was deliberate. Treating a financial application with no real prospect of success as an abuse of process would be inconsistent with the court’s duty under section 25 of the Matrimonial Causes Act 1973 to consider all the circumstances and the specified statutory matters.

2. Because Form A states the orders sought but not their grounds, “statement of case” in Rule 4.4(1)(a) and (b) should include the statement supporting the application. The touchstone under Rule 4.4(1)(a) is whether the application is legally recognisable. The wife’s application was legally recognisable and was not abusive. It should not have been struck out.

3. Sections 23(1) and 24(1) of the Matrimonial Causes Act 1973 permit financial orders on divorce or at any time afterwards. Delay nevertheless attracts critical scrutiny and may reduce or eliminate provision. Needs arising long after separation must have been generated by the marital relationship. Contributions to family welfare under section 25(2)(f), including care after separation, remain relevant.

4. The wife’s prolonged care of the children without substantial support could support a comparatively modest award. The short marriage, long separation, post-separation creation of the husband’s wealth, lack of contribution to that wealth, and unexplained delay weighed strongly against her. The application was to be referred swiftly to a Financial Dispute Resolution appointment. Later directions should confine oral evidence principally to delay and the parties’ disparate contributions to childcare.

5. The costs allowance order was valid. Under the jurisdiction recognised before section 22ZA of the Matrimonial Causes Act 1973 came into force, the overarching inquiry was whether the applicant could reasonably procure legal advice and representation by any other means. On the evidence, further unsecured credit or reliance on a charge over a modest and uncertain recovery was unreasonable. The costs allowance order was restored and the repayment order set aside.

1. United Kingdom Supreme Court: Allowed the wife’s appeal unanimously. It set aside the strike-out and repayment orders, restored the deputy judge’s costs allowance order, and directed the substantive application towards a Financial Dispute Resolution appointment and proportionate determination: [2015] UKSC 14.
2. Court of Appeal: Set aside the deputy judge’s orders, struck out the wife’s substantive application, and ordered partial repayment of the costs allowance: [2013] EWCA Civ 495; [2013] 1 WLR 3525; [2013] EWCA Civ 934.
3. High Court, Family Division: A deputy judge dismissed the husband’s strike-out application and ordered interim periodical payments totalling £125,000 towards the wife’s legal costs.