Posted on Mar 13, 2015 in Family Law by Amanda Wilson
This week, many were shocked to read the Supreme Court Judgment in the case of Wyatt v Vince. Where the Supreme Court, by unanimous decision has reinstated a financial claim made by the ex wife of Dale Vince.
Dale and Kathleen were married in December 1981 and had a son together. They lived a very humble "new age hippie" lifestyle and during their relationship had very little money. Unfortunately their marriage broke down and they separated in 1984. They did not however divorce until 1992. However, the financial matters were not resolved at that time – presumably as neither had any money to divide. Mr Vince subsequently set up the green energy company, Ecotricity, in 1995, eleven years after separating from his wife. As a result, Dale Vince is now a very wealthy man; estimated to be worth £107 million and he has received an OBE.
In 2011, Kathleen Wyatt embarked upon divorce proceedings against him in England, seeking a lump sum payment of £1.9 million and also assistance with her legal costs. Mr Vince has defended this on the basis that she is too late to make such a claim.
On 11 March 2015, the Supreme Court unanimously found that Ms Wyatt does have a right to apply for a capital sum and the case has been remitted back to the Family Division of the High Court to hear evidence on that. In doing so however, the Supreme Court did question the level of financial relief sought by Ms Wyatt and suggested that if she is entitled to anything, it will be a much more modest award.
What if the parties were divorced in Scotland?
In short, this wouldn't happen.
The law of divorce in Scotland is very different to that south of the border. Arguably, there are advantages and disadvantages to both systems. However, something that is unique to the Scottish system is the certainty following the granting of Decree of Divorce. Once that is granted, claims for financial provision end; a spouse cannot come back at a later date and seek a "second bite of the cherry" (except in very limited circumstances, for example where some assets were not disclosed at the date of divorce). The Court in Scotland favour the "clean break" principle which means that wherever possible, they seek to ensure that people will no longer be financially connected to each other after divorce. This means that any future wealth accrued by a party is protected from any future claims by their ex spouse.
In Scotland "matrimonial property" consists of all assets (with some exceptions such as gifts and inheritance) accrued during the period of marriage and before the "relevant date". An addition to that general rule is that matrimonial property will also include any property acquired before the date of marriage, if it was acquired for use as the family home or as furniture for such a home.
In terms of the "relevant date" that is generally the date that the parties separated. Normally that is the date upon which they stop living together as man and wife (in some circumstances, couples will still live together under the same roof for practical reasons, albeit they have separated).
A starting point for any divorce negotiations is that all of the matrimonial assets and liabilities have to first be established and then valued (at the relevant date) before negotiating how these will be divided.
As such, as there are clear boundaries for calculating the matrimonial property under Scots law, the Wyatt v Vince case simply would not get off the ground in Scotland.
Scotland v England?
The Wyatt v Vince case involves a peculiar set of circumstances; which means that it is perhaps unlikely to open the floodgates to similar claims south of the Border. However, what the Wyatt v Vince case has demonstrated is that it is crucial for anyone who finds themselves in a separation situation to obtain legal advice from the outset. There is a common misconception that legal advice is expensive and many consider that they can "do it themselves". However, that is simply not the case. It is crucial that specialist divorce advice is obtained at an early stage to ensure that any settlement is effected correctly, is legally binding and is fair and reasonable. Indeed, a person may find that they have jurisdiction to apply for a divorce in Scotland and England. In that situation, it is even more important to obtain legal advice from the outset; as a person may be financially better off applying in one jurisdiction compared to the other. By obtaining advice, you can avoid potential uncertainty further down the line; or indeed a claim from your ex 20 years later! Had Mr Vince moved to Scotland back in 1984 and applied for a divorce here, Ms Wyatt would have no claim to make.