Strike (out) whilst the iron is hot?
You may recall a widely reported case last year in which an ex-wife was allowed by the Supreme Court to pursue a claim against her former husband (with whom she had one son) nearly 20 years after they divorced. Wyatt v Vince  UKSC 14 hit the headlines due to the fact in the 20-year period following the divorce the former husband had taken himself from rags to riches by making a fortune in green energy.
The less glamorous but more practical point arising from this case was the treatment by the Family Court of an application to “strike out” the claim. “Strike out” is a draconian power of the court to throw out a party’s claim before it has even been considered. Although it is a common weapon in every good civil litigator’s armoury, is rarely seen in the softer world of family law. The decision in Wyatt v Vince established that the test in family law for a successful strike out application is very narrow.
A High Court case in March of this year, T v R (Maintenance after remarriage Agreement)  EWFC 26, gave Mrs Justice Parker the opportunity to apply the test formulated in Wyatt v Vince in the context of an ex-wife’s application to strike out the ex-husband’s application to vary an order.
In T v R, the parties married in 1992. The marriage broke down fairly quickly and the wife, after some time, brought financial remedy proceedings. Eventually, in 1999, the parties agreed an order. Paragraph 1 of the order stated that the husband would pay maintenance of £70,000 per year to the wife on a “joint lives basis”. That is, the husband would continue paying maintenance to the wife until the first to occur of a further order of the court, his own death or the wife’s remarriage. Unusually, a recital to the order was also included. This recorded an agreement between the parties that, even if the wife remarried, the husband would continue to pay maintenance to her at the rate in force at the date of the remarriage and these payments would be index linked.
The wife remarried in 2001 and, in accordance with the recital, the husband continued to pay maintenance to the wife (albeit without indexation) until September 2015 when he suddenly stopped paying. As a result, the wife made it clear to him that she intended to issue civil proceedings to recover the unpaid maintenance as a civil debt.
In response, the husband issued an application in the Family Court to vary paragraph 1 of the original 1999 order (i.e. the paragraph that provided for him to pay her £70,000 per year). This prompted the wife’s solicitors to claim that the husband could not apply to vary the order because it had come to an end upon her remarriage; the court, therefore, had no power to vary it. However, the husband made a further application to vary the recital to the order, which, he argued, was a maintenance agreement capable of variation. The wife applied to strike out both of the husband’s applications, claiming that the applications disclosed no reasonable cause of action.
Mrs Justice Parker considered the terms of relevant legislation (namely sections 34 and 35 of the Matrimonial Causes Act 1973) and decided that the recital to the order was capable of variation. He found it to be a maintenance agreement pursuant to the definition contained in the legislation. (This is a decision about which another entirely separate article could be written!).
Having determined this point, Mrs Justice Parker then went on to consider the wife’s strike out application. In doing so, he applied the strict and narrow test in Wyatt v Vince, which limits the Family Court’s strike out power only to those applications that are not “legally recognisable”. As the judge had found the recital to be a maintenance agreement, the husband’s application to vary was considered to be legally recognisable and was permitted to continue. It will, therefore, be considered by the court on its merits, in due course.
This case is another illustration (and perhaps, on the facts a less obvious one than Wyatt v Vince) of how difficult it is in the Family Court, almost irrespective of how hot your iron might be, successfully to strike out another party’s claim before it has been considered by the court in full.
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