Ex-wife entitled to bring support claim 18 years after divorce in absence of financial order, Supreme Court rules

The Supreme Court acknowledged that the ex-wife in this case, a Ms Wyatt, faced "formidable difficulties" in her claim for £1.9 million from her ex-husband, who had achieved considerable financial success after the marriage was over. However, the fact that a claim was a weak one was not the same as an abuse of the process, the court said in its judgment.

"The Supreme Court has confirmed that in the absence of a financial order at the time of divorce, it remains open to either spouse to bring a subsequent financial claim even if many years have passed since," said Kate Francis  of Pinsent Masons, the law firm behind Out-Law.com, who is an expert in matrimonial disputes involving high net worth individuals (HNWIs).

"For many, the concern will be that a former spouse might try to share in wealth generated by the other after the marriage had ended. The only bar to such a claim being brought is either to have a financial order made at the time or that the spouse who would otherwise seek to bring a claim re-marries. Interestingly, in this case the Supreme Court has indicated that the former wife may have better prospects on the basis of her argument that she carried on caring for the children of the family after divorce without, as she alleges, financial support from the husband," she said.

Financial orders are used by the courts to settle or confirm agreements about money or property on divorce or dissolution of a civil partnership. These can include lump sums and ongoing maintenance arrangements. Courts in England and Wales currently have wide discretion to make financial orders, with the idea behind them being to ensure that the financial needs of both partners are met.

Ms Wyatt and her ex-husband, Mr Vince, married in 1981 and had one son. She had a daughter from a previous relationship, who Vince treated as a child of the family. The couples' living arrangements were that of what the court described as "new age travellers", without assets or steady income. They separated in 1984 and divorced in 1992.

After the divorce, Vince went on to found the renewable energy company Ecotricity and to generate significant wealth. In 2011, 18 years after the divorce, Wyatt began a claim for a lump sum of £1.9m and legal costs. Vince sought to have the application struck out as an abuse of process, and the Court of Appeal agreed. However, the Supreme Court has now ruled in favour of Wyatt and returned the case to the family court.

The procedural rules of the family courts allow an application to be struck out if there "no reasonable grounds" for the claim, or if it is considered an abuse of process. The Supreme Court said that although this wording should be interpreted in the same way as the equivalently-worded civil court rules, the courts could not go so far as to also imply a test analogous to the civil court summary judgment rules into the family rules, as the Court of Appeal did.

"The meticulous duty cast upon family courts ... is inconsistent with any summary power to determine either that an ex-wife has no real prospect of successfully prosecuting her claim or that an ex-husband has no real prospect of successfully defending it," the Supreme Court said in its judgment. "The touchstone is … whether the application is legally recognisable."

Wyatt's claim would be difficult given the length of the marriage, her delay in raising it and the fact that Vince did not begin to create his current wealth until 13 years after the breakdown of the marriage, the court said. However, her ongoing care for the children of the marriage without any financial contribution from her former husband "may prove to be much more powerful" in the family courts, it said.

Speaking about the case to FT Adviser, pensions expert Robin Ellison of Pinsent Masons said that the case could prompt claims from other divorced couples for rights to retirement savings that went on to increase in value after the breakdown of the marriage.

"The decision makes it possible that long after a divorce a spouse can in theory pop up and claim pension rights which have improved in value beyond what was expected at the time," he said.