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How Long is Too Long to Wait to Make a Claim After Divorce?
30 March 2015
Under Australian law, claims for financial relief cannot be commenced after one year from the date of divorce (or two years from the date of separation in the case of de facto couples), without permission from the Court. The Court will grant permission in cases of hardship, provided there is a reasonable explanation of the delay.
Unlike Australia, there is no time limit in the UK for seeking Orders for financial provision of property settlement for a spouse after divorce, and this difference has been highlighted in a recent ruling of the UK Supreme Court.
In Wyatt v. Vince  UKSC 14 the UK Supreme Court ruled that Ms Wyatt ("the wife") could proceed with her claim for financial relief, ruling that it was not an abuse of process and should not be struck out. This was notwithstanding that her claim had been brought to court 22 years after her divorce from Mr Vince.
The parties were married in 1981. The wife had a daughter from a previous relationship whom the parties treated as a child of the family. They had a son the following year. They separated in 1984. Thereafter, the husband began a life as a new-age traveller which continued for about 8 years. The wife and children lived a "hand to mouth" existence, with little support from the husband who had a limited ability to provide financial support.
The parties were divorced in 1992 however subsequently the court file was mislaid therefore it was unknown what, if any financial orders were made at the time of divorce. The Supreme Court accepted that no financial orders were made at that time (had they been made, the wife could not have made a further claim on her husband in the present case).
During the 1990s, the husband's finances improved significantly. He commenced a green energy business which flourished to the extent that he became a multi-millionaire. The wife remained virtually impecunious. She applied to the court for financial provision in 2011.
In ruling in the wife's favour the Supreme Court confirmed that as there was no financial order at the time of divorce and no time limits, there was nothing to prevent her from proceeding, although in view of the facts of the case, there would be limits on her claim.
Although Australian law imposes limitation periods on the ability of litigants to commence claims after separation and divorce, there are still exceptions. The case of Wyatt is a useful reminder to separating couples to ensure that they formalise their financial arrangements after divorce or separation to ensure that they are not exposed to claims many years after a relationship has broken down.
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