Delaying the Decree Absolute: another look at Miller Smith v Miller Smith

Let’s begin with the basics. The divorce process in England is conducted in three stages:

1. The issue of a divorce petition.
2. The grant of a divorce decree nisi by the court.
3. Obtaining a certificate of decree absolute from the court office.

The Petitioner, who has initiated the process, files the marriage certificate on issue of the divorce petition. It remains lodged with the court and in return, on decree absolute, the certificate bearing the court seal is the effective “swap.” The parties are legally divorced only when there has been a grant of decree absolute. When a divorced person wishes to remarry, a sealed copy of the decree absolute must be produced as evidence the party is legally free to do so. It is possible to be fully divorced without a financial settlement being resolved.

At decree nisi stage the parties are almost, but not quite, divorced. The parties are still able to change their minds about getting divorced. That is why it is called nisi: the Latin term for “unless.” There is a six week and one day minimum mandatory period between grant of decree nisi and decree absolute, so that if the couple do want to change their minds, they will remain married. It happens rarely – but it does happen. I have one client who has twice obtained decree nisi from her husband, only to backtrack from the point at which the divorce was to be finalised. So it is a worthwhile part of the procedure and serves its purpose.

In most cases, however, too much water has passed under the bridge and the obtaining of decree absolute is public recognition that the parties, who are already divorced in body and mind, are now legally divorced. For most, it is the beginning of a new life and new, guilt-free relationships.

In some cases there is, in fact, a rush to decree absolute. For example, if there is a potential bankruptcy on the horizon and a financial settlement needs to be implemented. Or if there is a new baby on the way, and an urgent need to remarry. I have been involved in one case where in such a case, exceptionally, the mandatory period was shortened.

This post considers the opposite position: when one party does not want to be divorced so long as the finances remain unresolved.

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Applying for the decree absolute

It is a straightforward process to obtain a decree absolute. A single sheet application in a standard form is signed and handed in to the court office, together with a fee of £40. The court office seals and issues a certificate of decree absolute. Sometimes, however, the Petitioner refuses to apply. Perhaps emotionally, it seems a step too far, too soon – and the Petitioner, despite having initiated the process, cannot bring him self or herself to take the final step. So the Respondent may also apply, three months after the earliest date that the Petitioner could have done so, and that application too is usually a formality. Sometimes the parties agree at the outset that neither of them will apply for decree absolute until all the issues between them are resolved.

In fact there are occasions when, legally, it is unwise to apply for decree absolute. One example is when vital benefits could be lost if one party was to predecease the other without a court order being in place for a financial settlement – and if the losing party cannot properly be compensated out of the other assets for the loss. It is very rare indeed for someone to die during divorce proceedings, but it can still happen. It has happened in two of my cases over the last 20 years. Benefits such as a widow’s pension,  automatically payable under  a husband’s pension scheme, may be lost if the husband dies suddenly and there is a decree absolute, but the financial side is still rumbling on and no financial court order is in place.

Similarly, a religious divorce may be required to be in place before the parties are finally divorced. It is important to be aware of the possibility. Lawyers do argue then about the circumstances in which decree absolute should be delayed. Of course, it is always wise to consider your own position with your solicitor, before agreeing to decree absolute.

Decree absolute and the law

In the case of Miller Smith v Miller Smith (No 2) (2009 EWHC3623), a case on which I have posted before, my firm represented the husband. The Petitioner husband obtained his decree nisi of divorce, and the wife applied for the decree absolute to be postponed. She failed.  The facts of the case are set out in the law report and I do not intend to comment on them. I write only in relation to the law.

In paragraph 17 of his judgment Mr Justice Baker set out the law, having heard submissions from James Turner QC for the husband and John Wilson for the wife. He made reference to the statutory powers that the court has, outlining the circumstances in which the court “shall not” or “may” make a decree absolute under sections 8-10A of the Matrimonial Causes Act 1973. These include delaying decree absolute until financial provision has been made in certain divorces which are proceeding on a separation basis, and delaying decree absolute when a religious divorce is required to be put in place first.

After considering the statutory powers and following legal argument from both sides, His Lordship also found that there is an “inherent jurisdiction” of the High Court to delay making a decree absolute in appropriate cases. The case of England v England (1980) 10 Family Law 86 was a Court of Appeal decision where the court delayed decree absolute until a maintenance order had been made in favour of the children. The Court of Appeal followed the much earlier cases of Bromberg v Bromberg (1962) and also in Parks v Parks (1971), where Lord Denning in the Court of Appeal had stayed making the decree absolute because the financial settlement between the parties was set aside for material non-disclosure. (That’s an interesting idea!)

The more recent case (although unreported) of Dart v Dart in 1995 was also a Court of Appeal case. The Court held that the husband, who was also seeking his decree absolute, was entitled to it unless the wife “could show special circumstances to defer it”. She could not.

Citing Dart, Mr Justice Baker held that the power to delay decree absolute “is an exercise of discretion of the trial judge but that exercise of discretion weights the granting of the decree absolute against the special circumstances very heavily in favour of the grant. It is not a balancing exercise in the ordinary sense”.

One of the arguments in Dart was the most common argument for a delay, namely that of the husband’s possible death prior to the finances being resolved – and therefore the wife being worse off. Lady Justice Butler Sloss (as she was then) pointed out that Mrs Dart had claims under the Inheritance Act 1975, which were sufficient to meet all her legitimate claims. Therefore Mrs Dart would suffer no prejudice, despite the inconvenience of having to make her application.

That is the important point for practitioners to bear in mind. It is not only that potential benefits may be lost; but also that the wife may be prevented, because of death, of pursuing her same claims against the estate that she would in the financial proceedings against her husband.

Given that there is heavy weighting in favour of the grant of decree absolute, before an application is made only on the basis that there would be a potential loss of a widow’s pension, practitioners should consider the overall likely financial award to their client on divorce – and whether the husband’s estate could still meet it. If it could, then an application for delaying decree absolute could result only in a potentially heavy costs award against an unhappy client.