Challenging the WillFebruary 19, 2015
The Small Claims ProcessApril 16, 2015
On Friday, March 13, the Medicine Hat News reported on the recent British case of Kathleen Wyatt and Dale Vince. This report was likely the cause of fear for every person in Alberta who has been divorced, but has never signed an agreement which divides the property acquired with their spouse during their marriage.
Mr. Vince and Ms. Wyatt were married in 1981 and divorced in 1992. Since 1992, Mr. Vince has become very successful and now owns a green energy company called Ecotricity which is worth at least £57 million. In 2011, Ms. Wyatt began an action to divide Mr. Vince’s property between them. Last week, the British Supreme Court decided that, even though the parties had been divorced for 23 years, Ms. Wyatt was able to proceed with her action to have Mr. Vince share part of his £57million. While the Lords reportedly advised that the amount Ms. Wyatt was claiming (£1.9 Million) was out of the question, the fact remains that they believe that her claim was legally responsible and not an abuse of process.
What would happen if Ms. Wyatt was to bring her claim in Alberta under the same circumstances? In Alberta, section 6 of the Matrimonial Property Act provides that one spouse must bring an action to divide matrimonial property within 2 years of the granting of the Divorce Judgment. So, if Ms. Wyatt was to bring her action in exactly the same circumstances in Alberta, her action would be dismissed. The legislation in England does not provide for a time limit on the ex-spouse’s ability to claim for a division of property.
However, in Alberta, it is typical that Matrimonial Property Actions are commenced at the same time as Divorce Actions. The actions are typically started together in one action. If Ms. Wyatt had started her Matrimonial Property Action at the same time as her Divorce Action in 1992, would she have been able to carry on with her action in 2011? The answer is likely no. Alberta also has a rule which provides that if a person does not take any steps to move their action forward for 3 or more years, that action will be dismissed for want of prosecution. The English rules did not, at the time the action was begun, provide the Court with the ability to strike the application because of the passage of time.
In order to be successful in an application to divide matrimonial property in Alberta, the person requesting the division must do so within 2 years of the date of the divorce and must pursue their action without delay. The best way to be absolutely certain there will be no further actions against you, after you divorce, is to reach a settlement with your ex-spouse and enter into a legally binding agreement.