STRIKE OUT IN THE FAMILY JURISDICTION

Quaere the statutory or common law source

Yesterday it was confirmed that early last December permission to appeal had been given by the Supreme Court in Vince v Wyatt [2013] EWCA Civ 495.

In 21 June 2013 I wrote in NLJ http://www.newlawjournal.co.uk/nlj/content/change-heart of the various ways, in law, a judge can change his/her mind; and then concluded by reference to Vince v Wyatt. In that case the Court of Appeal struck out a wife’s claim for ‘abuse of the court’s process’ (FPR 2010 r 4.4(1)(b)), after the couple had lived apart for over 20 years. H prospered massively, relative to the couple’s living conditions at the time of separation. The court said she was far too late to seek to pursue a financial claim. It was struck out.

The judgment of Jackson LJ was expressed by reference to abuse of process (and see CPR 1998 r 3.4(2)(b)). No judges stated the statutory, or any other, power: a rule cannot change substantive law. They did not look at the question in the light of their ‘duty’ under MCA 1973 s 25. The common sense position was clear. The law was not. MCA 1973 s 25 remains the only statutory source of conditions on the court’s powers to make substantive orders. Parliament has imposed no statutory time-bar in financial remedy proceedings. Section 25 is in the present tense and applies in all cases, surely; and a delegated law provision (eg r 4.4) cannot override that?

It seems that the Supreme Court wish to consider that last question. Permission was given by Hale, Chadwick and Sumption SCJJ. The appeal is estimated to be heard in around November 2014.

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