What Importance a Decree Nisi?

In the complex arena of financial remedy proceedings there are many legal issues to navigate, however there are of course those elements that are seen as more of a procedural nature and as such can sometimes be neglected. One such aspect is the application for and granting of Decree Nisi, an issue recently considered by the Honourable Mr Justice Cobb.

Caselaw

K v K (Financial Remedy Final Order prior to Decree Nisi) [2016] EWFC 23 is in essence an essentially straight forward, run of the mill claim by the husband for financial provision. The matter eventually proceeded to final hearing on the 3rd December 2015 at which time the wife was represented by solicitors and counsel and the husband appeared in person.

The Judgment included a number of adverse findings against the husband in relation to his conduct of the proceedings and the Judge ordered the FMH, where the husband continued to reside, be sold with 60% of the net proceeds to be paid to the wife; a clean break in all respects thereafter. The order also provided for access for the wife to enter the FMH to collect belongings as well as provision for chattels to be sold, together with a costs award in the sum of £15,000 in favour of the wife in light of the aforementioned findings in relation to the husband’s conduct.

In light of the husband failing to permit the wife access to the FMH the wife applied to enforce the order. The husband also sought permission to appeal the order, having been refused such permission by the District Judge at the hearing. It was at that stage that it became apparent to the wife’s solicitors that at the time of the final hearing, or indeed thereafter, Decree Nisi had not been granted, or indeed, applied for.

It is trite law[1] that orders in financial remedy proceedings may only be made ‘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…’. Further complicating the situation, rule 29.15 of the Family Procedure Rules 2010 provide that “A judgment or order takes effect from the day when it is given or made, or such later date as the court may specify.’

The point was previously considered by Mrs Justice Eleanor King DBE[2] who held:

“regardless of whether the court is dealing with a consent order on the one hand or a disputed issue on the other, if the court purports to make an order or provides for a judgment to take effect prior to decree nisi, the resulting order will be a nullity and cannot be saved by FPR 29.15.”

Accordingly, with apparent regret, Cobb J set aside the order of the 3rd December 2015, noting that ‘this outcome appears to militate against the fundamental objective of disposing of cases justly, fairly and with an eye to their cost. A return for a re-hearing feels disproportionate, and I am conscious that it is undoubtedly profoundly unwelcome to the wife. I trust that the case can nonetheless be listed swiftly, and with minimal further preparation.’

Guidance

Inevitably, the best way to avoid such an outcome is to ensure that all procedural elements of an application are undertaken and completed correctly at the appropriate time, especially in relation to Decree Nisi.

However, in the event that the above omission has occurred and only becomes apparent at a stage too late to rectify, it is possible to remedy the situation. In the aforementioned case of NP v JP, Eleanor King J provided that:

It is necessary to look at whether the judgment delivered at the end of a contested hearing is a “final determination taking effect from the moment of judgment” or “an indication of outcome with the consequential order to be drawn and made at a later date, (here upon the making of decree nisi).”
If the order is to be made at a later date (i.e. after decree nisi), there is no necessity or requirement for any fresh appraisal; there are rare cases where circumstances change fundamentally between judgment, (or approval of the consent order), and decree nisi but the court has in its arsenal the ability to deal with such situations.

Thus if it is discovered that Decree Nisi has not been applied for at too late a stage to do so, the issue should be drawn to the attention of the Judge at the hearing and as such the necessary provision can be made both within the Judge’s deliberations and any subsequent order. This will prevent the situation where the order is subsequently set aside on the basis of such a technicality, thus saving the trauma and cost of a re-hearing, and indeed potential negligence claim against the representatives.

[1] Section 23 Matrimonial Causes Act 1973
[2] NP v JP [2014] EWHC 1101 (Fam)