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16 December 2016

20: A quickie divorce – (Part 2)

The reason for the divorce is only relevant to the financial outcome of a divorce in exceptional cases. Nonetheless there is often a perceived (if not real) benefit to being the person who brings the divorce proceedings (the Petitioner), not least with regard to having greater control over the timetable for the divorce. In practice, if the divorce is uncontested, there is little for the other party (the Respondent) to do but they may be keen for things to be resolved quickly.

As mentioned in the last blog, the decree nisi really represents a mid-point in the procedure towards the decree absolute, which is the order that actually ends the marriage. By the decree nisi the court declares that the marriage has irretrievably broken down and that the Petitioner is entitled to a divorce.

So what happens next?

The Petitioner is entitled to apply for the decree absolute 6 weeks after the date of the decree nisi. That period can be shortened in rare cases, say impending death or birth of a child but there is no requirement that the application is made promptly and it is often the case that Petitioners will only wish to apply once any outstanding financial issues have been attended to. There can be good reasons for this.

There is provision for the Respondent to make an application for the decree absolute but their route towards a decree absolute is more complicated. Instead of just lodging a request for the decree absolute the Respondent must make a formal application.

The relevant provision provides:

‘Where a decree of divorce has been granted and no application for it to be made absolute has been made by the party to whom it was granted, then, at any time after the expiration of three months from the earliest date on which that party could have made such an application, the party against whom it was granted may make an application to the court, and on that application the court may exercise any of the powers’.

Which are contained earlier in that provision. These simply say that the court can make the decree absolute or it can rescind the decree or it can require further enquiry or otherwise deal with the case as it thinks fit.

The question therefore arises as to whether it is open to the Petitioner to object to the Respondent obtaining the decree absolute. The answer to this question is yes, but in what circumstances? This question was recently examined by Mr Justice Moor in Thakkar v Thakkar. This was a case where Mrs Thakkar obtained the decree nisi but did not apply for the absolute. This prompted Mr Thakkar to apply.

Mr Justice Moor did not make new law. He referred to a decision from 1980 which stated that the court had the power to delay the making of the decree absolute in the exercise of its inherent powers where there were ‘special circumstances’ which made it just to do so. He also accepted that the test he had to apply was as follows:

‘Consequently one starts with this position, that the husband has the right to a decree absolute after the appropriate period following decree nisi and that period has now elapsed. In a normal course of events he would be able to obtain the decree absolute unless the wife is able to show special circumstances to defer it. At the end of the day it is an exercise of the discretion of the trial judge, but that exercise of discretion weights the granting of the decree absolute against the special circumstances very heavily in favour of the grant. It is not a balancing exercise in the ordinary sense’.

So was there a special circumstance in Thakkar? The judge thought there was and that Mr Thakkar should not be entitled to obtain the decree absolute and end the marriage.

An allegation of financial non-disclosure was made against Mr Thakkar but that was not enough by itself to amount to ‘special circumstances’. What appears to have won the day for Mrs Thakkar was the finding that there was an off-shore structure which was a fundamental issue in the case. All the assets were off-shore and held in very complicated structures which had altered in the recent past. The judge accepted that the status of Mrs Thakkar (ie married or unmarried) could make a difference to the enforceability of any order ultimately made within the financial proceedings to vary the settlements.

It is therefore clear that there may be circumstances where the Petitioner can legitimately hold up the divorce process but those situations will be rare.

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