Introduction
Though the norm is to apply for a decree absolute after a final order in the financial remedy proceedings has been made, there is no requirement to follow this approach.
Why is it the norm?
To ensure that a party to the divorce does not lose any entitlements to assets or pensions, which they would otherwise be entitled to if a decree absolute not been pronounced, applications for decree absolutes are usually made after the conclusion of the financial remedy proceedings. Usually, the parties to a divorce agree that an application for a decree absolute will not be made until conclusion of the financial remedy proceedings.
Where the parties are unable to agree, the respondent to the application for a decree absolute often seeks to argue that they will suffer financial or other disadvantage if the petitioner dies after the decree absolute is pronounced, for which they could not receive compensation.
In such situations, the pronouncement of the decree absolute is opposed on the basis the respondent will suffer prejudice.
It is therefore not uncommon for respondents to applications for a divorce to seek an undertaking from the petitioner that no application for a decree absolute will be made.
Can the court delay the pronouncement of decree absolute?
Yes. The family courts have a discretionary power to delay the pronouncement of the decree absolute. These powers come from s.10 of the Matrimonial Causes Act 1973.
In the past, cases such as Miller-Smith v Miller-Smith (No 2) [2009] EWHC 3623, and Thakkar v Thakkar [2016] EWHC 2488 (Fam) told us that the High Court had the jurisdiction to delay the pronouncement of a decree absolute, but that it may only do so in special or exceptional circumstances.
The Divorce, Dissolution and Separation Act 2020, which commenced in April 2022, and introduced “no fault divorce”, gave a new life to s.10 of the Matrimonial Causes Act 1973. Therefore, the use of the High Court’s inherent jurisdiction to delay a divorce has largely become redundant.
S.10 of the Matrimonial Causes Act 1973 reads:
(2)The following provisions of this section apply where—
(a)on an application for a divorce order a conditional order has been made and—
(i)the conditional order is in favour of one party to a marriage, or
(ii)the conditional order is in favour of both parties to a marriage but one of the parties has since withdrawn from the application, and
(b)the respondent has applied to the court for consideration under subsection (3) of their financial position after the divorce.
(3)Subject to subsection (4), the court hearing an application by the respondent under subsection (2) must not make the divorce order final unless it is satisfied—
(a)that the applicant should not be required to make any financial provision for the respondent, or
(b)that the financial provision made by the applicant for the respondent is reasonable and fair or the best that can be made in the circumstances.
(3A)In making a determination under subsection (3) the court must consider all the circumstances including—
(a)the age, health, conduct, earning capacity, financial resources and financial obligations of each of the parties to the marriage, and
(b)the financial position of the respondent as, having regard to the divorce, it is likely to be after the death of the applicant should that person die first.
(4)The court may if it thinks fit makes the divorce order final notwithstanding the requirements of subsection (3) above if—
(a)it appears that there are circumstances making it desirable that the order should be made final without delay, and
(b)the court has obtained a satisfactory undertaking from the applicant that they will make such financial provision for the respondent as the court may approve.
It is noteworthy that Section 10(2)-(4) does not confer on a respondent any sort of right or entitlement to financial relief beyond that which they could obtain by application under the MCA 1973, ss 23-24. It simply gives a respondent a general right to delay making a divorce order final.
Where a party seeks to delay the pronouncement of a decree absolute, or where a party is opposing an application to delay the pronouncement of the decree absolute, the question of undertakings should be seriously considered.
Undertakings are promises to the court. In the present context, the party giving the undertaking would promise the court to make sufficient financial provision available to the Respondent in the event he/ she passes away before a final order is made in the financial remedy proceedings.
Therefore, it is essential the offer for undertakings, and a response to an offer for undertakings is well thought through beforehand.
Summary:
· A decree absolute can be pronounced before the conclusion of ancillary relief proceedings. There is no requirement that it be pronounced after the conclusion of the ancillary relief proceedings.
· The court has the power to delay the pronouncement of the decree absolute under s.10 of the MCA 1973.
· The High Court may delay the pronouncement of a decree absolute under its inherent jurisdiction. It may only do so in special or exceptional circumstances.
· Similarly, the court has a discretion to dismiss an application for a decree absolute, but may only do so if satisfied that there are special or exceptional circumstances.
Pine Legal
For help with Family Court Financial Remedy proceedings, contact our family law team. We a firm of solicitors, are based in Brentford, London, and help clients across England and Wales.
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