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Surprise proceedings – The dangers of not resolving finances on divorce

Date posted: 30 August 2018

A v B (Financial Remedies: Application to Strike Out) [2018] EWFC 4

 

After a relatively short marriage of 8 years, the husband petitioned for divorce and he took responsibility for the children, with the wife continuing to be the greater breadwinner. The husband unfortunately did not issue an application for financial provision at the time of the divorce.

 

The parties managed to keep relations reasonably amiable in the years afterwards, with the wife providing some financial support voluntarily. Some 15 years later, due to the husband having a poor financial situation, the wife and her second husband provided a lump sum of £400,000 for a house for the husband and children to live in rent-free. However years later the wife herself found herself struggling financially, and sought to sell the property.  There was an agreed date of sale in early 2017, but at that point the husband sought legal advice.

 

The husband was advised that he could still technically issue financial order proceedings, which he subsequently did. The wife applied to strike out his claim on the grounds of lack of court jurisdiction under s28(3) Matrimonial Causes Act 1973 (due to the fact both parties had re-married) and FPR 4.4 (1)(a) & (b) (no reasonable grounds and abuse of process).

 

The ‘re-marriage trap’ occurs when a party re-marries, as they are legally prevented from issuing an application against their former spouse. However in this case the husband’s solicitor argued that the husband’s application was technically contained in his divorce petition.  The wife abandoned that part of her claim, and pursued her claim for strike out on the basis of abuse of process.   She pleaded breach of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (Right to a fair trial).

 

It was held by Mr Justice Baker that the husband was entitled to bring his claim at any time after the filing of his divorce petition. There is no statutory power to summarily dismiss a claim for lack of reasonable prospects of success, and no statutory time limitation. The judge had to assess if the application was an abuse of process, which he decided it was not.  The wife could not show unreasonable delay or abuse of process. Delay in itself is not an abuse of process.

 

The Judge’s refusal to strike the case out, does not mean the husband will succeed in his claim, and after such a long delay (25 years) this will be a significant factor when assessing if he is entitled to any financial award, but he is entitled to bring the matter to the consideration of the court. The Judge commented on the ‘potentially lifelong obligations which attend a marriage’ and he did not find in the particular circumstances of this case, especially with the ongoing financial link, that the delay was unreasonable.

 

The case has now actually returned to court and the Judge dismissed the husband’s claim as no financial orders were merited on the facts.

 

The moral of this story is that if you don’t want the possibility of a surprise financial order application decades after you have divorced, and whilst married to another person, it is exceedingly important to deal with resolution of financial matters at the time of the divorce. We always advise to resolve finances at this time, even if this only relates to a clean break financial order, as only a court order finalising the finances can provide certainty and prevent surprise applications.

 

We are able to provide advice on all types of financial remedy proceedings, many of which can be resolved amiably via an agreed consent order. Please contact our Patricia Beckett at p.beckett@wilsonllp.co.uk for more details, or to arrange for an appointment, please call Mavis on 020 8885 7986