This article is intended to provide some guidance regarding the circumstances where the making of a Final Divorce Order can be delayed.
Section 10(2) – (4) of the Matrimonial Causes Act 1973 (‘MCA 1973’) offers a mechanism for respondents in divorce proceedings to ensure that their financial needs are met prior to a Conditional Divorce Order being made Final. The provisions in this section of the MCA 1973 were not commonly used before the Divorce Dissolution and Separation Act 2020 came into force on 6 April 2022.
The provisions of Section 10 MCA 1973 offer special protection to all respondents in divorce proceedings, save that it is not available on a joint application for divorce unless one of the parties has withdrawn from the application (s.10 (2) (a) (ii) MCA 1973). The special protection enables the respondent to apply to court, when a Conditional Order has been made, to consider their financial position after divorce. The respondent may wish for the court to consider matters such as ensuring that a fair financial provision has been made for them by the applicant, or where financial entitlements such as spousal pension benefits might be affected by the divorce.
Upon an application by the respondent under s.10 MCA 1973, the court must not make the Final Order unless it is satisfied either that the applicant should not be required to make any financial provision for the respondent (s.10 (3) (a)), or that the financial provision made by the applicant for the respondent is reasonable and fair or the best that can be made in the circumstances (s.10 (3) (b)).
Section 10 (3A) MCA 2973 provides a checklist of factors which the court must consider when determining the respondent’s application, this is for the court to consider all of the circumstances including—
(a)the age, health, conduct, earning capacity, financial resources and financial obligations of each of the parties to the marriage, and
(b)the financial position of the respondent as, having regard to the divorce, it is likely to be after the death of the applicant should that person die first
These factors overlap with the factors in s.25 (2) MCA 1973, however an application under s.10 (2) – (4) provides only for a delay in finalising the divorce order and does not provide for any additional rights or entitlements to financial relief.
The court may make the Conditional Order Final notwithstanding the requirements of S.10 (3) MCA 1973 if it appears to the court that there are circumstances making it desirable that the order should be made final without delay, and if the court has obtained a satisfactory undertaking from the applicant that they will make financial provision for the respondent (s.10(4) MCA 1973). Any undertaking given by the applicant should contain specific proposals for financial support to the respondent rather than a general undertaking to provide financial support (Grigson v Grigson [1974] 1 All ER 478).
The court will decline to use its powers under s.10(2) – (4) if financial provision can be appropriately dealt with under an application for financial remedy and therefore any applications under this provision should be carefully considered as they can lead to an order for costs if such application adds nothing to a financial remedy application (Robertson v Robertson [1983] 4 FLR 387).
When deciding to whether to make an application under s.10(2) – (4) the following matters should be considered:
- The application should be made only by the respondent in divorce proceedings unless it was a joint application for a Conditional Order and the other party has withdrawn.
- The application can only be made only once a Conditional Order has been granted.
- The party applying under s.10(2) – (4) is at risk of an adverse order for costs if the application could be dealt with under an application for financial remedy.
- The court can make the conditional order final notwithstanding the outstanding financial matters if it is satisfied that either the making of an order is desirable or if it has obtained a satisfactory undertaking from the applicant regarding appropriate provision for the respondent.
Parties should therefore carefully consider the qualifying factors of applications under Section 10 and prepare any application with clear strategy and intention with regard to the courts powers and potential adverse costs consequences.
Members of Becket Chambers are able to assist with matters pertaining to family finance; please contact the Clerks on 01227 786331 or via clerks@becket-chambers.co.uk for further details.
