Partner Article

Financial claim based on support after divorce fails

The usual course of events on divorce is that there is a financial settlement which divides up the family assets as they are at that point in time. This takes into account the expected future income and need for income of the couple who have split up, based on how they lived during the marriage and whether or not they have any children.

The apportionment of a couple’s assets also depends on whether or not there was a pre-nuptial agreement, how much each person brought into the marriage (the ‘pre-marital assets’) and how much each contributed to building up their assets during the marriage.

In a recent case however there was a significant twist, warns Emma Gray, Solicitor at Sydney Mitchell LLP. A woman’s ex-husband went to court to claim financial support under the Matrimonial Causes Act 1973, many years after their divorce had been accomplished amicably, based on the standard of living his ex-wife had provided for him after their marriage ended.

The couple had been married for nine years and had two children. The wife had always been the principal breadwinner and, when they split up, the husband had received the majority of their limited matrimonial assets and he and the children continued to live in the matrimonial home. The wife continued to pay the mortgage on the house and provided maintenance for the children.

This situation persisted for more than 20 years, when a falling-out between them led the ex-husband to issue his claim for financial provision.

His ex-wife opposed the application, arguing that she would not have agreed to provide the level of support she had for the last 24 years if she had known a claim would be made. However, at a hearing earlier this year, the Family Court granted the ex-husband the right to bring a claim.

In subsequently rejecting his claim and refusing to make an order in his favour, the Court noted that the parties had considered their original divorce settlement to be final and the ex-husband’s current needs were not such as could fairly be expected to be met by his ex-wife.

This was posted in Bdaily's Members' News section by Sydney Mitchell LLP .