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Family analysis: Lexis PSL discuss the judgment in K v K (Financial Remedy Final Order prior to Decree Nisi), Grant Howell points out that family judges have a noble history of concern as to the implications of the outcome of their orders but their hands are tied if statute is not followed.
In December 2014 the husband issued a petition for divorce and in the following month issued an application for financial relief. At the final hearing the wife was represented by solicitors and counsel and the husband was not represented. At the conclusion of the hearing judgment was delivered, with the district judge making a number of adverse findings against the husband, and his conduct, and a limited number of substantive orders, including for the sale ‘forthwith’ of the former matrimonial home, with 60% of the net proceeds of sale being paid to the wife. In addition the district judge ordered a clean break in respect of all other forms of financial relief, including pension. Within the order, after the words ‘It is ordered that’, there followed the words ‘with effect from Decree Absolute’. The judge's order also reflected a number of provisions which were to have immediate effect. When considering enforcement measures, the wife's solicitors discovered that at the time the order was made, decree nisi had neither been applied for nor granted. The court concluded that it is trite law that orders for financial relief 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 (whether, in the case of a decree of divorce or of nullity of marriage, before or after the decree is made absolute) (per section 23 of the Matrimonial Causes Act 1973). The matter was therefore remitted back to a district judge (other than the judge who made the order) for rehearing.
The key issue was that, although family law is a discretionary area as to the outcome of financial applications, statute must be followed as to process. A court only has jurisdiction to make a financial remedy order linked to a divorce that takes effect either on or after decree nisi. As the judge in K v K said, this is ‘trite law’. Family judges have a noble history of concern as to the implications of the outcome of their orders but their hands are tied if statute is not followed. This is even the case, as here, where the decision means having to return to ‘square one’, with the resulting extra costs, and where the outcome suits the purpose of a party who had already been sanctioned in costs for deliberate attempts to frustrate the process. The need for the court to bear in mind proportionality, and the overriding objective under Family Procedure Rules 2010, SI 2010/2955, 1.1, is not enough in itself to remedy the making of an order specifically worded to be effective despite no decree nisi having been granted, even if that fact was unbeknown to the judge. The added significance of the case is that it provides a further example of the implications of the rise in litigants in person, as the petitioner was here. The petitioner had not applied for the decree nisi and was found not to have been aware of the implications of not doing so. In making his decision the judge in K v K noted that it was:
‘…a depressing outcome for both parties, who are now returned to the place they were in shortly before the final hearing in December 2015. It is I recognise particularly frustrating for the wife who, perhaps with justification, considers that the husband has taken steps along the way to frustrate the process…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.’ (para )
The judgment does not need to clarify the law in this area, as it is clear both on the face of the statute and on previous authority. However, it is helpful in closing down potential arguments such as the attempt to pray the overriding objective in aid of seeking to avoid the financial order being found to be a nullity. Likewise, it makes clear that unless an order obtained in advance of decree nisi makes absolutely clear that it is only to take effect on or after decree nisi, the wording used in the order is not sufficient to save it. In this case, reference was made to the fact that the sale of the matrimonial home was stated not to take effect until decree absolute, thereby implying there would need to be a decree nisi. That was held to be insufficient of itself to enable the financial order to survive.
Five points arise:
Two points occur:
Watch this space.
Interviewed by Kate Beaumont.