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The effect of delay on a financial remedies claim

October 11, 2024

Most people wishing to make a financial remedies claim against their spouse will do so at the time of the separation or divorce, and obviously this is the recommended way to proceed.

But what if there is a delay between the separation and the making of the claim? Will this have a bearing upon the ultimate outcome?

The answer is that it might do, as was demonstrated by a recent case that took place in the Central Family Court in London.

The background to the case was as follows.

The parties married in 2004 and had two children, now aged 17 and 12. The marriage broke down in 2011, when the wife discovered that the husband had used her credit cards to conduct his gambling habit. The wife regarded this as the ‘last straw’, asked the husband to leave her flat, and indicated that the marriage was over. The husband duly moved out, and the parties have been apart ever since.

For whatever reason, neither the husband nor the wife issued divorce proceedings until the wife issued her petition in November 2017. The divorce was finalised a year later, and there appears to have been no mention of financial remedy proceedings at that time.

In August 2020, some nine years after the separation, the husband issued a financial remedies application, which was eventually heard by His Honour Judge Hess in June this year.

The financial circumstances of the parties was essentially that the husband was not working and had no assets or pension, whereas the wife was working as a GP receiving some £188,000 per annum, had assets of some £429,000 and pensions worth some £595,000.

The wife claimed, and Judge Hess accepted, that at the time of the separation the husband told her that if she took responsibility for the debts on her credit cards (then standing at about £34,000), he would not seek anything financially from her in the future.

Judge Hess had to consider whether the husband’s delay in making his application should have any bearing upon the outcome. As he explained, there are public policy reasons for delay to be avoided, and the court should therefore look critically at explanations for the delay.

Here, the husband had not provided a good reason for the delay. In view of this, and what the husband had said at the time of the separation, Judge Hess thought that this was a case where the delay was so potent a factor as to reduce what the husband might otherwise have been awarded.

If it were not for the delay the husband might have received a substantial proportion of the assets in order to meet his needs, particularly his housing needs. But Judge Hess did not see why those needs should not continue to be met in the same way as they had since 2011 – in rented accommodation, with the rent met by state benefits.

The outcome of the case was that the husband was awarded a lump sum of £35,000, which is what the wife had offered, plus one of the wife’s pensions, with a value of £107,000.

You can read the full report of the case here.

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Image: Dmytro Zinkevych / Shutterstock.com