“It is trite law that orders for financial relief may only be ‘made’ (“the court may make”) on the “granting of a decree of divorce, a decree of nullity of marriage or a decree of judicial separation or at any time thereafter (whether, in the case of a decree of divorce or of nullity of marriage, before or after the decree is made absolute)” (see the opening words of section 23 of the Matrimonial Causes Act 1973) (emphasis by underlining added).”
So said Mr Justice Cobb, in the course of his judgment in K v K (Financial Remedy Final Order prior to Decree Nisi).
To put that quote in (relative) layman’s language, the court can only make a final financial/property order in connection with divorce when or after the decree nisi has been pronounced (and, incidentally, the order will usually not take effect until the divorce has been finalised by the decree absolute). It’s a small but crucially important point, the rationale for which must be that the court can only exercise its special powers to adjust ownership of property once the divorce is going through. In other words, those powers are intended for those who are definitely getting divorced, not for those who are (or may) not.
K v K was one of those occasions when the court fell foul of section 23 by making a financial relief order before the decree nisi had been pronounced. Quite why this happened is not explained in the report, but the district judge who made the order was apparently under the misapprehension that decree nisi had been granted, the wife’s lawyers were for some reason under the same misapprehension and, as a litigant in person, the petitioner husband did not know the significance of obtaining the decree nisi prior to the final hearing, as one might expect.
The sequence of events in K v K can be very briefly stated. The husband issued divorce proceedings in December 2014 and in January 2015 he issued an application for financial relief. The final hearing of that application took place on the 3rd of December 2015. On that day the district judge made his order providing, amongst other things, for the sale “forthwith” of the former matrimonial home, with 60% of the net proceeds of sale being paid to the wife.
The husband did not comply with the order and the wife’s solicitors therefore considered taking enforcement measures. It was only at this point that they discovered that at the time of the order the decree nisi had neither been applied for nor granted. The wife could not apply for the decree nisi herself and therefore in February 2016 she applied for leave to issue a fresh divorce petition. Apparently in response to this, the husband applied for the decree nisi, which was granted on the 14th of April.
The wife’s enforcement application and an application by the husband for permission to appeal the order went before Mr Justice Cobb. The wife’s counsel tried to get around the section 23 issue by arguing that the order had been intended, or could be amended to read, that it should take effect after the 14th of April.
Mr Justice Cobb, however, did not accept that argument. Unlike in the previous case of JP v NP, the district judge had not made the order with the intention that it should take effect after the decree nisi. He had intended that the order should take immediate effect, prior to the decree nisi. The order was therefore a nullity, and a re-hearing of the financial relief application had to take place.
A salutary lesson for all concerned.
The full judgment can be read here.
Image by sean mason via Flickr under a Creative Commons licence