13 MAR 2015
What price good child care? – Ms Wyatt and Mrs Wright ask
is certain. You cannot rely on the tabloids (or some of the broadsheets) to
gain an understanding of the impact of financial remedy decisions in the
appellate courts. News articles in respect of Vince v Wyatt  UKSC 14 told us: ‘Legal experts said the
ruling could open floodgates for claims by long-divorced ex-spouses seeking a
share of their former partner’s earnings.’ (Evening
Standard) and ‘A hippy whose ex-husband became a millionaire businessman
years after they parted has won a cash fight which could open the floodgates
for thousands more claims.’(Daily Mirror)
Of Wright v Wright  EWCA Civ 201 they printed ‘Divorced wife told to get a job and stop living off her ex-husband’ (Daily Telegraph) and ‘Judge tells
ex-wife of millionaire horse surgeon: 'go out to work’ (Guardian). However, on reading the judgments it is clear that the
facts of Vince v Wyatt will quite
possibly never be replicated so it’s a bit soon to reach for sandbags and that Pitchford
LJ didn’t tell Mrs Wright anything of the sort.
What is the common theme of these two very different cases? In each case
the court has been concerned with that precious and important justice that is
deserved by a divorced mother in respect of a past contribution to the welfare
of the family by dedicating years of both time and direction to the rearing of children.
Any busy lawyer with young children will know that these are wild horses
pulling in different directions. What weight should that contribution carry?
What is the fair result?
The two mothers pursue/d different goals and for different reasons.
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Ms Wyatt wants financial assistance to purchase a property and capital
to provide an income, a total amount of £1.9m. In reality she is unlikely to
get an award resembling anything like that after Lord Wilson explained it was
unrealistic and that in his opinion she had ‘a real prospect of comparatively
modest success, perhaps of an order which would enable her … to purchase a
somewhat more comfortable, and mortgage-free, home for herself and her
remaining dependants’. When one bears in mind that, ‘She lives in a house with
three or four bedrooms in Monmouth which in 2010 she purchased from the local
authority on a discounted basis under the Right to Buy scheme for £60,000 by
virtue of a mortgage in that amount,’ it is clear that she is unlikely to
receive an award after that indication of anything more than the national
average house price. The average UK mix-adjusted house price in September 2014
was £273,000 (ONS). But then what is ‘somewhat more comfortable’? That is no
doubt in the eye of the beholder. For a man with a reported wealth of £110m, is
that not a relatively small sum to account for the provision of care to the son
you share of such a quality that only a mother can provide. Mr Vince was bold
enough to speak on BBC Radio 4’s Today
programme and made it clear that he continued to hope that Ms Wyatt would
receive nothing. He explained that in his opinion it was wrong that she would
receive anything after such a passage of time and that such principles were
worth fighting for. Initial views on reading the judgment that the FDR before
the Family Division would certainly compromise the matter may have been
Precisely what Mrs Wright wanted is not clear from the Court of Appeal
judgment. One presumes she didn’t particularly want to have to go back into the
workforce. She was encouraged to do so at first instance in 2008 at age 44 and
then in 2013 by HHJ Roberts at age 49. All we are told in the judgement as to
her past employment is ‘previously worked before her marriage as a legal
secretary and as an administrator’. In fact, the respondent had done nothing
since 2008 to look for work or to retrain or to prepare herself for work. It
was, in fact, District Judge Penelope Cushing at first instance who had explained
‘There is a general expectation in these courts that once a child is in year 2,
most mothers can consider part time work consistent with their obligation to
their children.’ This was the second limb of those headlines. Go back to work
when your youngest child is 7.
Are the courts, again, undervaluing the contribution made by the parent
that provides care to the parties children? Paragraphs 34 and 35 of Vince v
Wyatt confirm that it is an important consideration and the reason why Ms Wyatt
has reasonable prospects of success (albeit that is irrelevant to the strike
out provisions of FPR 2010, r 4.4 contrary to the decision of the Court of Appeal). What
though is a fair reflection of that contribution in financial provision? Money
can’t buy it. In reality that maternal (or paternal) undertaking is probably
priceless. Might not dedication to a child as a single parent have stymied Mr
Vince’s financial successes?
Is it a fair result that so
often a primary carer has to consider seeking employment when the odds are
against them in often low paid and relatively unrewarding work when the other
parent enjoys the fruits and inspiration of a mature, unhindered career and
children brought up attentively by the other parent? Should the court go
further to balance this? If so, how should the balance be struck? Certainly in
these two cases the wealthy, high-flying and successful husbands appear also to
be achieving overall success in the courts.