Mr Vince

In a landmark decision issued today, the Supreme Court has supported an ex-wife's right to make a claim for financial provision on divorce in England against her husband 20 years after they divorced. The parties were described as having lived a"new age traveller" lifestyle during the course of their marriage. Their separation took place in the mid-1980s and the divorce in 1992. Subsequent to the divorce the husband, Mr Vince, launched a green energy firm Ecotricity in Stroud, Gloucestershire, using a wind turbine made from recyclable materials to power his caravan.

In 2011, the wife, Miss Wyatt, made her first claim for financial provision and the parties have been engaged in litigation since then to determine whether the wife had a right to make a claim for financial provision so long after the divorce. At first instance, the judge held that she did. This was overturned on appeal. However, the Supreme Court has backed the wife's right to make her claim.

This case highlights two of the major differences between Scots and English law when it comes to financial provision on divorce.

In Scotland, unlike in England, it is not possible (except in certain rare circumstances) to make a claim for financial provision after you are divorced. Therefore, it is critical in Scotland that no application for divorce is made until either the financial provision has been resolved by negotiation and encapsulated in a binding Minute of Agreement, or the financial provision issues prove unresolvable and require to be determined by the court. In the latter case, if there is no interim negotiated settlement, the court will make orders in relation to financial provision at the same time as granting Decree of Divorce. Unfortunately, we have seen too many cases where unsuspecting couples have divorced in Scotland without resolving the finances, and then finding themselves in dire straits when they realise that no forum for resolving the financial issues is available to them. In Scotland, Ms Wyatt's claim to seek financial provision would have been extinguished in 1992 when she and Mr Vince divorced.

Even if Ms Wyatt and Mr Vince had not divorced, the definition of matrimonial property in Scotland would have severely limited Ms Wyatt's claim. In Scotland, the definition of"matrimonial property" and therefore the assets which are available to be shared between the parties in the event of separation or divorce are those assets acquired between the date of marriage and the date of separation other than by inheritance or gift from a third party. Therefore, in Scotland any assets built up by Mr Vince after the parties separated in the mid-1980's would not be in the"pot" for division. Ms Wyatt's claim in Scotland (assuming that the parties had not yet divorced) would have been restricted to sharing in the value of the matrimonial property as it stood in the mid-1980's when by all accounts the parties' assets appeared minimal.

Given the comments made by the Supreme Court to the effect that Ms Wyatt receiving financial provision to the tune of £1.9m is"out of the question" it seems likely that the passage of time is a factor that the English court will consider in determining what financial provision should be awarded to Ms Wyatt, and it will certainly be interesting to see the outcome of the next chapter in this case when the level of her financial provision is considered. However, there is no getting away from the fact that the extent to which Mr Vince's post-separation achievements are taken into account, and the extent to which Ms Wyatt is entitled to share in them, is entirely within the discretion of the English court unlike in Scotland where Ms Wyatt would have no claim on Mr Vince's post-separation wealth.

The interaction between financial provision and the timing of divorce, and the differences between England and Scotland, can have a significant impact for separating couples. In the event that you would like any advice, please do not hesitate a contact a member of the Family Law Team.

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