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
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 Nisi in to the Decree Absolute? This can be important for those wishing to stop their spouse from remarrying until financial agreements are put in place. It can be important for others who wish to preserve their right to claim financial assets (such as a pension), when that right may be lost once the divorce is concluded. We find that if our client wishes to wait for Decree Absolute until financial negotiations are concluded, a letter to the other party or their solicitor will be sufficient to reach an agreement on this issue. However where the other party is the Petitioner, and wishes to divorce without delay, for example so that they can remarry, the Respondent may need to commence an application at court to prevent the divorce progressing to Decree Absolute until agreed.
The court application 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)  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.