When can you delay Decree Absolute?

In many cases clients are keen to obtain Decree Absolute, the final stage of the formal divorce process. For some it’s a time to grieve, for others a chance to host a Divorce Party. There are some circumstances, however, when there are good reasons to delay it.  One such reason may be the risk to the client of financial disadvantage should the petitioner die before financial issues have been resolved.  Typically this will relate to the loss of pension benefits due to a spouse on the petitioner’s death.

Non-fault grounds

Under s.10 of the Matrimonial Causes Act 1973 an application to delay Decree Absolute can be made where the petition is on non-fault grounds. Section 10 states that (with emphasis added):

“(3)     The court hearing an application by the respondent…shall consider all the circumstances, including the age, health, conduct, earning capacity, financial resources and financial obligations of each of the parties, and the financial position of the respondent as, having regard to the divorce, it is likely to be after the death of the petitioner should the petitioner die first; and, subject to subsection (4) below, the court 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 or the best that can be made in the circumstances.

(4)     The court may if it thinks fit make the decree absolute notwithstanding the requirements of subsection (3) above 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 such financial provision for the respondent as the court may approve.”

It should be noted that the making of proposals for financial provision is not enough to satisfy s.10(3)(b). Actual provision is required before this ground is satisfied: Wilson v. Wilson [1973] 2 All ER 17.

Similarly, to satisfy s.10(4)(b), a general undertaking to make “such provision as the court may approve” is insufficient and the court should instead scrutinise the financial provision proposed by the petitioner: Grigson v. Grigson [1974] 1 All ER 478.

Fault grounds

Where the petition is based on fault grounds, a party can rely upon the court’s inherent jurisdiction to stay the making of Decree Absolute. The leading authority is Miller-Smith v. Miller-Smith (No 2) [2010] 2 FLR 351.  At para 23 Baker J states (with emphasis added):

“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”.

He goes on at para 25 to consider what might be considered such circumstances:

Financial disadvantage is not a ground for refusing a divorce and the statutory obligation at one stage imposed on a court when considering an application for ancillary relief to strive to put the parties in the position they would have been in had the marriage not broken down has long been abandoned.  If, however, a respondent can establish that she would suffer a financial or other disadvantage if the petitioner dies after the decree absolute for which she could not receive compensation, it is possible that the delay of the decree absolute under the inherent jurisdiction may be ordered.”

On the facts of that case, the application to stay Decree Absolute was refused because the petitioner husband had offered “comprehensive undertakings” which removed the risk of disadvantage to the wife. The husband undertook to nominate the wife to receive pension benefits upon his death, and to make provision by way of health insurance cover.

It is therefore clear that the bar to overcome on an application to stay Decree Absolute is a high one, but petitioners must also be aware of the need to make proper and reasonable proposals for provision both in the short and long term.

This content comes from Holly’s seminar on pensions which will be held in Eastbourne, Dartford and Canterbury on 17th, 18th and 20th October 2016 respectively.