How to stop Decree Nisi from being made Absolute

Byron James, Barrister at Expatriate Law, reviews the law, practice and procedure relating to the prevention of a Decree Nisi being made in to a Decree Absolute within divorce proceedings

The first evidence of a no-fault divorce system being implemented was via the Bolshevik revolution enacted in Russia by the 1918 Decree on Divorce. Since then, a number of countries have sensibly followed suit and in the UK, Resolution continue to campaign hard for reform. Taking the acrimony out of the divorce process by requiring allegations of fault is surely a must that will take place in the near future. That change, along with divorce moving online, is all part of making the process smoother, more modern and more ergonomic. How distant the 1990’s Conservative party objections to making divorce easier seem, the requirement through the now repealed Part II of the Family Law Act 1996 for spouses to attend ‘information meetings’ long now obsolete, largely because those attending the meetings just for information ended up wanting a divorce, the law of unintended consequences in full swing.

Just as the world is increasingly asking how to make the divorce process easier, the question remains as to how to stop that process once it has started. How do you stop someone from applying to make the Decree Absolute? It is a little known process which is in part statutory and in part inherent power.

The Matrimonial Causes Act 1973 contains various provisions about proceedings after the Decree Nisi. Those proceedings involving the Queen’s Proctor aside (for which special provisions apply), section 9 (1) MCA 1973 confers wide powers on the Court where a petitioner has failed to apply for a decree absolute.

Provided that no person has shown cause why the decree should not be made absolute by reason of material facts not having been brought before the court then at any time after the expiration of three months from the earliest date on which the petitioner could have made such an application, the party against whom the Decree Nisi was granted may make an application to the court to utilise the powers set out within the section. The purpose of this provision is to protect Respondents against inaction on a petition brought. Essentially once the Petitioner has had the chance to act on the petition post Decree Nisi being pronounced and not taken it, then the Respondent may then have the chance.

There are otherwise very narrow grounds upon which a party may apply to prevent a Decree being made Absolute. These are contained within sections 10 and 10A. Section 10 gives a statutory right to a respondent to a petition under section 1(2)(d) or (e), referred to by James Turner QC in his submissions during Miller-Smith v Miller-Smith (No 2) [2009] EWHC 3623 as the “no fault” grounds (in contrast to the “fault” grounds under section 1(2)(a) to (c), including the ground of unreasonable behaviour) to apply for consideration of his or her financial position.  On such an application the court (1) shall not make the decree absolute unless it is satisfied (a) that the petitioner should not be required to make any financial provision for the respondent, or (b) that the financial provision made by the petitioner for the respondent is reasonable and fair and the best that can be made in the circumstances (section 10(3)), but (2) may, if it thinks it fit, make the decree absolute, notwithstanding the requirements of section 10(3) if (a) it appears that there are circumstances making it desirable that the decree should be made absolute without delay, and (b) the court has obtained a satisfactory undertaking from the petitioner that he will make any such financial provision for the respondent as the court may approve. This is the first statutory ground upon which a party may apply for a Decree not to be made Absolute.

The second ground is within section 10A (as inserted by the Divorce (Religious Marriages) Act 2003), as Baker J set out in Miller-Smith v Miller-Smith (No 2) [2009] EWHC 3623 [para.18] provides

“…. for cases involving marriages conducted according to certain defined religious usages, the court has a statutory discretion to order that a decree nisi should not be made absolute until the parties have made a declaration that they have taken such steps as are required to dissolve the marriage in accordance with those usages.”

These are then the statutory grounds under which one may apply. Given the narrow basis of these grounds, the ability to apply to prevent a Decree being made Absolute would only arise in quite rare circumstances were one only able to apply under these alone. However, these are not the only grounds under which an application can be made. There is a little known power under the inherent jurisdiction, as defined by the Court of Appeal in England v England (1980) 10 Family Law 86 and Dart v Dart (unreported, 27th October 1995), and confirmed in the Family Division by Miller Smith (per Baker J, as above) and Thakkar v Thakkar [2016] EWHC 2488, per Moor J). The application succeeded in the latter and failed in the former.

In England v England (only a summary form of the judgment appears in the law reports), the Court of Appeal upheld an appeal by a wife against an order of a judge who, on granting a decree nisi on her undefended petition, had ordered that the decree was not to be made absolute until a maintenance order had been made in favour of the children.  In giving the lead judgment of the Court of Appeal, Brandon LJ stated:

“It was contended for the wife on this appeal that there were no circumstances in which the court had power to delay the making absolute of a decree nisi.  I do not accept that contention.  It is, in my view, clear beyond doubt that the court has the power to do that in the exercise of its inherent jurisdiction where there are special circumstances which make it just that it should be done.”

The Court of Appeal held that the judge had erred in making the order and allowed the petitioner wife’s appeal. Brandon LJ relied upon two authorities in support of the inherent power, both were prior to the Divorce Reform Act 1969: namely Bromberg v Bromberg [1962] 1 WLR 1143 and Parks v Parks [1971] 1 WLR 1481.  The former is only a brief note of a decision but the latter, without reference to any authorities, upheld an order staying the making absolute of a decree nisi obtained under section 1(2)(e) on the basis of an agreement for ancillary relief which was allegedly vitiated by material non-disclosure.

In Dart v Dart, Butler-Sloss LJ quoted the passage from Brandon LJ’s judgment in England cited above and commented as follows:

“Consequently, one starts from the proposition that the husband has the right to a decree absolute after the appropriate period from decree nisi, and that period has now elapsed.  In the normal course of events he would be able to make the decree absolute unless the wife is able to show special circumstances to defer it.  At the end of the day it is an exercise of the 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.”

Several arguments which were said to constitute sufficient reason for delay of the decree absolute were considered and rejected, including concern that the husband might die before decree absolute and as a result the wife might be worse off.  Butler-Sloss LJ rejected this argument because:

“If, in fact, the husband did die, the Inheritance Act 1975 would meet the legitimate aspirations of this wife in a very similar way to an ancillary the authority of two Court of Appeal decisions that there is a discretionary power under the inherent jurisdiction to delay or stay an application to make a decree absolute, but this jurisdiction can only be exercised if the respondent is able to establish special or exceptional circumstances.

Baker J then concluded in Miller Smith that:

“there are therefore two appeal decisions which provide that there is a discretionary power under the inherent jurisdiction to delay or stay an application to make a decree absolute, but this jurisdiction can only be exercised if the respondent is able to establish special or exceptional circumstances”.

An application to make a Decree Absolute was brought by the Husband in Thakkar. The Wife opposed the application and Moor J considered what powers were available to him to prevent the Decree being made Absolute. Whilst His Lordship was referred to the two Court of Appeal cases, he did not refer at all to Miller Smith, saying instead that, “…until very recently it was thought that the only authority on the subject was first instance authority, which of course is persuasive on me, but not binding. It has since been discovered that, in fact, the Court of Appeal has made a determination on this issue in a case called Dart v Dart” This could of course be a tacit, rather than explicit reference to Miller-Smith, although perhaps more likely he was referring to the Re G decision which he distinguished from his own.

Moor J found that the case before him was ‘highly unusual’ and involved ‘extremely contentious and disputed issues’. The Wife alleged non-disclosure on the part of the Husband and the rhetorical question was asked how can she show prejudice and satisfy the Dart test if her husband has not given a full and frank account of his affairs? This building upon the point made in Parks albeit again a case not expressly referenced.

The Court is therefore then placed in a difficult position, especially in an international case that might provide for different outcomes to parties depending upon whether they are married or divorced. Moor J stated that he had “very considerable sympathy” for a wife who comes along and says, “You cannot determine at this interim stage the factual matrix behind this case, so I cannot tell you the exact prejudice I would face by pronouncement of decree absolute.”

Moor J referred to the decision of Bennett J Re G [2002] EWHC 2834 where such an application failed because simply stating that there might be potential prejudice under the Inheritance (Provision for Family and Dependants) Act 1975 in the event of death is not sufficient (see above). The difference for the Court was that there was ‘no offshore structure… that concerned the court’. His Lordship found that “it is the fundamental issue in this case. I take the view that there is a potential for very considerable prejudice indeed in cases where there are such offshore structures. Whether or not you are a wife or an ex-wife can make all the difference.”

Having found that this was a “situation… where it can be very significant if you are a wife or a former wife” he was “satisfied that, in this case, [the Wife], has established the special circumstances that are sufficient to override the otherwise strong presumption in favour of ending the marriage. I therefore dismiss the application”.

Therefore, there is now considerable guidance to assist when seeking to determine whether a Decree should be prevented from being made Absolute when engaging the Court’s inherent powers. It should ultimately involve a situation where it can be ‘very significant’ whether you are a spouse or former spouse. One example of this, is where the assets are abroad, involving complex structures and there is a prima facie case of non-disclosure. Simply arguing that there would be a prejudice on death inherent in an Inheritance Act claim, is not sufficient (unless, perhaps, that there was some proper identifiable prejudice).

A final procedural point on the application process. The Family Procedure Rules 2010 have a specific section on “applications to prevent decrees nisi being made absolute or conditional orders being made final” under rule 7.31. However, section 1 of this rule specifically restricts the applications to ‘under section 8 or 9 of the Matrimonial Causes Act 1973’ and not any other route, such as under sections 10, 10A or the inherent power. The rules otherwise appear to be silent as to which mechanism under which it would be appropriate to apply. The writer’s preferred solution would be to simply comply with this provision in any event. This would therefore entail a Part 18 application and, if under the inherent power, should it is submitted, be capable of being made at any relevant time.