Finances on Divorce: When is a final order final?
Financial order made within Divorce after final hearing but before Decree Nisi. Does the court have jurisdiction?
JP v NP  EWHC 1101 (Fam)
Appeal by wife against an order which set aside, for want of jurisdiction, an order in financial remedy proceedings. Application allowed and costs granted against the husband.
The issue on this appeal was whether the judge had erred in law in setting aside, for lack of jurisdiction, a final order for financial remedies made following a determination prior to the pronouncement of decree nisi. Appeal allowed.
This was the third application to come before the court, following a final order made in 2011 in financial remedies proceedings. At the time of the final hearing, decree nisi had not been pronounced. The DDJ conducting that hearing indicated that “the appropriate terms of the resolution of the financial applications would be for there to be an equal division of the assets” and made an order for costs against the husband. The matter was then listed for mention to follow the pronouncement of decree nisi. Decree nisi was pronounced 11 months later, but in the event a final order was made without the mention taking place. The husband complied with the order to the extent that he paid the wife a lump sum of £21,000.
The wife’s costs were not agreed between the parties, and she obtained a default costs certificate. The husband applied to set aside the costs certificate, alleging that the DDJ lacked jurisdiction to make the order as decree nisi had yet to be pronounced at the time. The husband was successful in his application, the costs order was set aside and the wife was ordered to pay the husband’s costs of the application.
Twelve months after decree nisi was pronounced the husband made his second application, this time to set aside the substantive order of the DDJ for want of jurisdiction. He argued that the order contravened section 23 of the Matrimonial Causes Act 1973 as it was made prior to decree nisi being pronounced. The husband’s application was allowed by another DDJ who found that the initial DDJ did not have jurisdiction to make a final order in an opposed application prior to decree nisi being granted. The wife was granted permission to appeal the order to set aside.
It was common ground between the parties that if the husband succeeded on the wife’s appeal, the likely outcome was that the wife would issue a fresh application for financial remedies, and the likely outcome of that application was an equal division of the assets between the parties, as ordered by the DDJ.
Reviewing the existing authorities, and relying on r29.15 of the Family Procedure Rules (2010) which states that “a judgment or order takes effect from the day when it is given or made, or such later date as the court may specify”, Eleanor King J found that the DDJ had jurisdiction to make the financial remedy order prior to decree nisi being pronounced.
The learned judge then went on to consider whether a distinction ought to be drawn between orders made by consent and ‘non-consent’ orders made prior to pronouncement of decree nisi. On behalf of the husband it was argued that a distinction existed, such that orders made by consent were protected by Section 33A of the MCA 1973, and could therefore be made prior to pronouncement of decree nisi to take effect on or after the pronouncement. Further, it was argued on his behalf that the difference in opposed applications lies in the fact that in those cases the court retained a duty to investigate whether there was a change in circumstances between any hearing and the making of an order upon pronouncement of the decree.
Contrary to the argument advanced on behalf of the husband, Eleanor King J found that r29.15 applies equally to orders made by consent or opposed applications, and added that in both cases FPR 29.15 gives the court a discretion as to the date of implementation; and, in neither case is there a necessity or requirement for any fresh appraisal after decree nisi. The learned Judge dismissed the further arguments made on behalf of the husband, stating that the same principles applied to both types of orders,
“the only difference being that in a consent order, policy has limited the depth of enquiry necessary where parties have reached a concluded agreement, whereas in a case where there is a dispute requiring resolution by the court, a more detailed consideration of the evidence is needed through the calling of witnesses and the hearing of argument resulting in the giving of a judgment.”