AR v JR

An application for financial remedies following divorce is not abusive merely because earlier financial provision was made during judicial separation proceedings. Judicial separation and divorce are distinct causes of action, and an order made in the former proceedings will not ordinarily compromise claims arising on divorce unless that intention is established. The strike-out jurisdiction under rule 4.4(1)(b) of the Family Procedure Rules 2010 survives, but must be used sparingly. The Henderson abuse principle may justify strike-out in an appropriate case, yet it applies only where the later claim should properly have been raised earlier and the circumstances amount to abuse. A party is not obliged to pursue an entitlement-based claim without the disclosure needed to assess it.

The parties married in 1967 and accumulated substantial wealth during a long marriage. Following separation, the wife commenced judicial separation proceedings and obtained a consent financial order in 2011. The order recorded that the husband had not provided full financial disclosure and stated that the provision was in full and final settlement of claims, while the operative dismissal provisions referred to claims in the judicial separation proceedings.

After the husband later petitioned for divorce, the wife applied for financial remedies, including a sharing claim. The husband applied under rule 4.4(1)(b) of the Family Procedure Rules 2010 to strike out the application, arguing that the 2011 order compromised the claim or that pursuing it was an abuse of process under the Henderson principle. The central issues were the scope of the 2011 order and whether the wife's subsequent claim was abusive.

1. The application was dismissed. The 2011 consent order was intended to deal with the parties' financial claims arising from the judicial separation proceedings, not a future divorce. The documents contained no reference to divorce, and the operative language repeatedly referred to claims in those proceedings. The absence of financial disclosure also made it unlikely that an entitlement-based claim arising on divorce had been intended to be compromised.
2. The husband had not established that the 2011 agreement compromised claims in divorce. The parties' finances remained intertwined after the order, and the husband's conduct in the later proceedings did not show that he initially understood the wife's claims to have been extinguished.
3. The strike-out jurisdiction under rule 4.4(1)(b) survives, but it is to be used very sparingly. The Supreme Court's reasoning in Wyatt v Vince [2015] UKSC14 emphasised the court's duty under section 25 of the Matrimonial Causes Act 1973 to consider all the circumstances and the matters specified in section 25(2), which is inconsistent with summarily determining the prospects of a financial remedies claim.
4. The Henderson principle concerns abuse of process. It may apply where a party seeks to raise later a matter which could and should have been raised earlier, but, as explained in Henderson v Henderson [1843] 3 Hare 100, Johnson v Gore Wood & Co [2002] 2 AC 1 and Brisbane City Council v A G for Queensland [1979] AC411, the circumstances must amount to abuse. The principle must not shut out a genuine subject of litigation.
5. There was no obligation on the wife to pursue her full entitlement claim in the judicial separation proceedings. Divorce terminates a marriage whereas judicial separation does not. She lacked the financial information needed to assess a sharing claim, was entitled to accept needs-based provision while the marriage continued, and had neither misled the husband nor caused him to act on a misleading representation.

The parties were urged to consider mediation.