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Leisha Bond

The Supreme Court has delivered its judgment in Vince v Wyatt and appears to have sent the public into a frenzy (those that are on Twitter anyway)!  There appear to be 2 camps:

A) The ‘it’s a result for hitherto undervalued mothers’ brigade, as per the headline in the Guardian today: “Finally, divorced women who bring up the children have some legal value”. This surprised me as certainly for as long as I have been practising at the Bar (16 years), women have been valued for that role in applications for financial provision upon divorce. London is not considered the divorce capital of the world for no reason.

B) The “judges have gone insane and this woman is a disgrace to womankind and should support herself” camp.

Both miss the point.  The Supreme Court has not given her a penny.  It has simply given her the possibility of having her case heard.

What the Supreme Court ACTUALLY decided

It decided the court cannot strike out a case for financial provision on divorce without consideration of the evidence, and the Matrimonial Causes Act 1973, s 25, criteria, even if it has no real prospect of success, unless it is an application which is bad in law (because, for example, the wife cannot bring a claim because she has re-married).

It sent the case back to the High Court to decide matters BUT it did give a strong warning and a strong steer.

It confirms what lawyers already knew: that there is no statutory limit for bringing an application for financial provision upon divorce.  It is a case that clients who decide not to pursue financial resolution upon divorce need to know about.

The facts

The parties met in early 1981 – he was 19 and she was 21.  In December 1981 they married.  Mrs Wyatt brought a child from a previous relationship into the marriage and in 1983 the parties had a child together.  They lived off state benefits.

They separated in 1984 after a little over 2 years of marriage.

Mr Vince became a ‘new age traveller’ and lived for some time in an ambulance, converted into a camper van and moved around.

Wife lived ‘hand to mouth’.  Husband supported her minimally only given his own financial predicament.

Mrs Wyatt had 2 more children (now aged 21 and 18) but did not marry again.

Husband developed an interest in wind power having attached a windmill to a pylon and some batteries and 4 mobile phones in the early 1990s and offered a mobile phone service to Glastonbury festival goers.  He later went to look at the first wind turbines and thereafter started a company, Ecotricity, whose growth and success has been phenomenal.  It is now worth at least £57 million.  He has remarried and has a small child.

The parties’ biological son is 31 and works for Husband and has lived with him since he was 18.

The financial position of Mrs Wyatt (now 55) remains extremely modest.  She lives in an ex council house which is mortgaged and in a bad state of repair.  She is reliant on benefits and low paid employment.  She is in poor health.  The 3 adult children who live with her make only minimal contributions to the household.

The applications

In 2011, some 27 years after separation, Mrs Wyatt issued an application to the court for a lump sum and for interim periodical payments in sums equal to her estimated costs.

Mr Vince applied under R 4.4 of the Family Procedure Rules 2010 for her application to be struck out.  This provision provides that a court may strike out a statement of case if it appears to the court: (a) that the statement of case discloses no reasonable grounds for bringing or defending the application; (b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings.

His application was struck out by Mr Nicholas Francis QC sitting as a deputy judge of the High Court in 2010 and he was ordered to make interim payments to Mrs Wyatt’s solicitors for her legal costs at the rate of £31,250 pm for 4 months i.e. a total of £125,000 (‘the costs allowance order’).

Husband appealed both orders to the Court of Appeal which allowed the appeals and ordere

d Mrs Wyatt to reimburse Mr Vince part of the money he had already paid (£36,677 ‘the repayment order’).

Mrs Wyatt appealed to the Supreme Court. Her appeal was unanimously allowed by LJs Hale, Clarke, Wilson, Hughes and Hodge.

The decision: (my emphasis in bold)

Unlike in civil cases, there is no power for summary judgment in the family rules. When a party applies for financial provision upon divorce the court has to decide the application having regard to all the s 25 MCA 1973 criteria. R 4.4 of the FPR 2010 did not allow summary assessment of Wife’s case.

Strike out cannot be used where the application is ‘legally recognisable’, only where not legally recognisable eg where applicant has remarried.

It does not matter if there is no real prospect of success.

It was pointed out that wife’s application faces ‘formidable difficulties’, in particular the inordinate delay. It said ‘the court will …be likely…to reduce or even eliminate its provision for the applicant’

It pointed out ‘it is a dangerous fallacy…that the current law always requires rich men to meet the reasonable needs of their ex-wives’. As stated in North v North [2007] EWCA Civ 760 he ‘is not an insurer against all hazards’. To sustain a case of need many years after separation, she must show not only a need but that it has been generated by her relationship with husband.

Clearly she cared for the children of the family which would have inhibited her earning capabilities, but she also had 2 younger children and poor health. It is questionable she will be able to successfully argue need. Her better argument, it appears, is her ‘contribution’.

So the identified issues are delay on one hand and ‘disparate contributions to the care of the children on the other’.

The issue of whether the delay is so potent a factor that it might eliminate her award remains live.

In relation to the interim PP order (what would now be a s22ZA costs allowance order), this was restored and the repayment order was set aside.

Implications?

Though not relevant to the decision, it was said that Mrs Wyatt had a real prospect of comparatively modest success. But the decision was there cannot be a strike out, even if there are no reasonable prospects of success. In deciding this the Supreme Court appears to have inadvertently given financially weak parties with a wealthy ex a route to a financial remedy where there are little or no merits. Where, as here, one party’s legal bills are being met by the other, the recipient has nothing to lose by applying, however unreasonable the application. Where a wealthy husband is paying 2 sets of legal fees he may well chose to make an offer to settle, even if the application is weak, on the basis it will be cheaper than funding litigation that he is likely to win but be unable to recover his costs for.

Contrary to some of the media reporting and the general view on social media, Mrs Wyatt has not

yet “won” anything. Lord Wilson said Mrs Wyatt faces ‘formidable difficulties’ given the short length of the marriage and the lengthy delay, however went on to say she could perhaps anticipate ‘comparatively modest’ provision of a mortgage free house for herself and her dependants. One can probably guess what will be suggested at FDR…..

Republished with kind permission. This post originally featured on St Philips website and can be found here.