Legal
Major London Court Ruling On Divorce Payout Has Lessons As Far As Hong Kong - Lawyers

A high-profile ruling on divorce payment by the Supreme Court in London carries clear lessons - and parallels - for the legal system in Hong Kong, lawyers argue.
A ruling that enables a divorced wife of over 20 years to seek £2
million ($2.97 million) from an ex-husband made wealthy only
after they were long divorced has caused international as well as
national shockwaves, lawyers say.
A raft of law firms have said the case of Kathleen Wyatt and her
former husband Dale Vince carries serious implications for
marital law in England and Wales (Scotland operates under a
different system).
In the case of Wyatt v Vince, Dale Vince and Kathleen Wyatt
married in December 1981; they split in 1984 and their
divorce was not finalised until 1992. Vince is renowned for
having become the founder of Ecotricity, a £90 million business
that supplies “green energy” from wind turbines – he became
wealthy. Wyatt launched legal action against Vince in 2011,
asking for a payment and help with funding her legal bills. He
attempted to throw out her case but a judge ruled against him in
2012. He appealed that decision and the Court of Appeal reversed
that decision. However, in a further twist, the Supreme Court
said the woman's case should be heard.
“The news from London yesterday about a divorced wife of over 20
years being entitled to seek £2 million from an ex-husband made
wealthy only after they were long divorced has caused the phone
to ring in many of the offices of divorce lawyers in Hong Kong
today,” Sharon Ser, a family partner at Withers, said.
“In fact as shocking as the news may first seem, the wife in
Wyatt v Vince hasn't actually received anything yet. All that has
happened is the Supreme Court in London has decided that Ms Wyatt
is entitled to be heard on her application. The reason Ms
Wyatt managed to succeed thus far is that it would appear her
claims for financial provision had not been formally dismissed at
the time of her divorce,” she continued.
The “prudent and professional divorce lawyer will always ensure
there is the relevant provision in a divorce order whenever
possible, although in the case of Ms Wyatt the court file had
been mislaid and neither of the parties seem to have kept the
final order made at the time of their divorce,” she said.
There are implications from such a situation that courts far
afield, such as in Hong Kong, should bear in mind, the lawyer
added.
“The law in Hong Kong mirrors that in England in many respects.
Applications for financial provision are usually made at the time
of the divorce proceedings and capital claims are usually made at
that time and there is no provision here for a second bite of the
capital cherry. If a `clean break’ financial order is made then
neither spouse can apply for further financial provision. If an
order for ongoing maintenance is made then such orders can be
subject to variation—upwards or downwards—until such time of the
recipient’s re-marriage,” Ser said.
Withers family partner, Marcus Dearle, said: “This case is an
extremely rare beast. But it is a healthy wake up call. The main
lesson to be learned is that detail matters. Get your paperwork
in order. Dismiss those financial claims at the time of the
divorce. A few thousand HK dollars in legal costs completing that
task could save you tens of millions of dollars in the long run.
Plan ahead and plan early.”
"Formidable difficulties"
Lois Langton, a partner in the family team at law firm Howard
Kennedy and whose clients include sports stars, musicians and
actors, said: “The Supreme Court has today acknowledged that Ms
Wyatt faces what the court has described as 'formidable
difficulties' in seeking to establish that a financial order
should be made in her favour. However, the court has stated that
the legislation obliges it to determine an application having
regard to all the circumstances of the case. Unlike civil cases,
the Supreme Court has said that the family procedure
rules do not provide power to give summary judgment and to
strike out a case on the basis that it has no real prospect of
success.
“It is a remarkable decision. Substantial costs will now be
incurred in determining Ms Wyatt’s substantive application
despite the fact that ultimately there is a strong possibility
that no financial award will be made to Ms Wyatt," Langton
said.
“Most people would expect to be able to arrange their lives 30
years after separation without fear of litigation rearing its
costly head. Allowing the appeal not only runs the risk of
opening the proverbial floodgates but the inability of the courts
to be able to exercise their discretion to strike out a case that
has no real prospect of success also demonstrates the significant
shortcomings in the family justice system. Ms Wyatt has won on a
technicality which the general public itself would probably
consider to be `an abuse of the court’s process' in light of the
costs to the public purse of giving a forum to such claims,"
Langton added.
Josh McEvoy, a solicitor at Mundays law firm, said: “The past has
come back to haunt Mr Vince almost two decades on. Despite the
lengthy delay in bringing her financial claim, Ms Wyatt has been
found to have a 'reasonable prospect of success'. It is a stark
reminder that unless financial matters are dealt with at the time
of divorce then such claims can remain open long into the
future.”
William Healing, a family law partner at Kingsley Napley, said:
“This case confirms that there is no time-bar in financial
divorce applications. You should tie up loose ends upon
separation with a formal court order. Otherwise, as in this case,
a spouse like Ms Wyatt who has ongoing childcare responsibilities
may come back for a claim many years later. It is the childcare
responsibilities she had which have kept her claim alive over two
decades. That fact alone gives her a good chance of getting,
say, roof over head, from her ex-husband’s millions.”