Decree absolute before conclusion of financial remedy proceedings - the law

The law:

S.10 of the Matrimonial Causes Act 1973 reads: 

(2)The following provisions of this section apply where—

(a)on an application for a divorce order a conditional order has been made and—

(i)the conditional order is in favour of one party to a marriage, or

(ii)the conditional order is in favour of both parties to a marriage but one of the parties has since withdrawn from the application, and

(b)the respondent has applied to the court for consideration under subsection (3) of their financial position after the divorce.

(3)Subject to subsection (4), the court hearing an application by the respondent under subsection (2) must not make the divorce order final unless it is satisfied—

(a)that the applicant should not be required to make any financial provision for the respondent, or

(b)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.

(3A)In making a determination under subsection (3) the court must consider all 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.

(4)The court may if it thinks fit makes the divorce order final notwithstanding the requirements of subsection (3) above if—

(a)it appears that there are circumstances making it desirable that the order should be made final without delay, and

(b)the court has obtained a satisfactory undertaking from the applicant that they will make such financial provision for the respondent as the court may approve.

It is noteworthy that Section 10(2)-(4) does not confer on a respondent any sort of right or entitlement to financial relief beyond that which they could obtain by application under the MCA 1973, ss 23-24. It simply gives a respondent a general right to delay making a divorce order final.

Additionally, the High Court, under its inherent jurisdiction, may delay the pronouncement of the decree absolute in “special circumstances”, however the need to consider the matter under the inherent jurisdiction has largely become redundant as a result of the Divorce, Dissolution and Separation Act 2020, and the fact that the divorce petition was a “no fault divorce” petition.