There has been considerable media coverage recently concerning the decision in the case of Wyatt v. Vince by the Supreme Court, the highest Civil Court in the United Kingdom.

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Briefly stated, this is a case where a wife, some 22 years after her divorce, sought an award of £1,900,000, against her former husband, who is now a multi millionaire.  What was not made clear in the reports was, firstly, that the wife had not been awarded this sum but had simply been granted the right to seek a claim for financial provision, and secondly, and more importantly for those of us who live and work in Scotland, this decision has no application in Scotland. The Law in England, as I understand it from the terms of the Matrimonial Causes Act 1973, is that notwithstanding that the parties were divorced in 1992, it was open to the wife to initiate an application for financial provision in 2011 or indeed at any time.  The principal ground in support of her application was her former husband’s alleged failure to support the children of the marriage during the intervening period.   The action had been raised initially in a lower Court and it was due to the lower Courts decision to “strike out” her application that she appealed to the Supreme Court.

The five Judges sitting in the Supreme Court decided that the wife’s appeal against the “strike out” should succeed and her application should proceed.   Whilst they acknowledged that under the law of England there is no time limit for seeking orders for financial provision or property adjustment for the benefit of a spouse following divorce, public policy is “hostile to forensic delay”.   The Judges noted and acknowledged that the wife is currently seeking an award of £1,900,000 but commented that even at this early stage they concluded that an award approaching that size was out of the question.

So what is the possibility of a Court in Scotland being faced with a similar claim?    I have to say that it is unlikely in the extreme.   Financial provision in Scottish divorces is dealt with in terms of the Family Law (Scotland) Act, 1995, as amended.   Section 12 of that Act states that an order for payment of a capital sum, transfer of property or indeed for a Periodical Allowance i.e. regular payments for a fixed period of time or until the occurrence of a particular event must be made either on granting of a Decree of Divorce or within such period as the Court on granting the Decree of Divorce may specify.  This means that effectively after the granting of Decree of Divorce the rights to claim any financial award are extremely limited.   There is specific provision in Section 13 of the Act for one party to seek a Periodical Allowance after Decree of Divorce where no such order has been made previously and since the date of decree there has been a change of circumstances.  I suspect that any such application will have to be made reasonably soon after date the Decree of Divorce and that there would have to have been a significant change in the parties circumstances to justify it before there is any chance of success.

If you wish to discuss this article or any matter which flows from it please do not hesitate to contact any of the members of the Court team, namely Duncan Love (01224 581581) – This email address is being protected from spambots. You need JavaScript enabled to view it., Susan Waters (01224 581581) – This email address is being protected from spambots. You need JavaScript enabled to view it. or Jenni Sutherland (01224 581581) – This email address is being protected from spambots. You need JavaScript enabled to view it..