A v R [2020] EWHC 3729 (Fam) - Procedure for decree nisi, and effect on subsequent financial remedy order - when is a decree nisi not a decree nisi? - when is a final financial order not a final order?

This article is concerned with W applying for a declaration under the court's inherent jurisdiction that a decree nisi was granted on 25 January 2019 and that the same should now be recorded on the court file;   there being financial remedy proceedings being put into the mixer.  W’s appeal was dismissed.  Other applications by H were then not relevant.

The original order was made by a DJ, W appealed to a Recorder, and then to Cohen J.

The chronology contains tearful delays but needs to be aired, as follows:-

  • in August 2016 H issued a divorce petition
  • in October 2016 W issued an application for financial remedy
  • through to FDR it was recognised by all that there was no DN
  • on 25th January 2018, at the start of the second day of the final financial remedy hearing the judge said ‘I have dealt with the issue of decree nisi’
  • on 8th October 2018 on third day of final hearing, the hearing finished, with judgement reserved
  • on 18th March 2019 a draft judgement was circulated
  • on 10th June 2019 the judgement was perfected, and, within time, W appealed, as H had not paid the lump sum or periodical payments, the order intending to take effect immediately.

Cohen J cited the procedure for a decree nisi, contained in FPR Rule 7.16/18/19 & 20, and decided, (referring to the DJ):-

(1) the judge did, it is now clear, sign a certificate of entitlement on 25 January, very probably just before going into court;
(2) what the judge said was that the matter, the issue, had been "dealt with." She did not say that the decree nisi had been pronounced;
(3) no notice of the decree hearing had been given to either party;
(4) no determination had been made as to whether or not the decree should not be pronounced in public in the usual way and I mention this only because it is plain that what happened if a decree was pronounced was that it happened in private;
(5) there was no listing of the decree nisi;
(6) there is no tape on which a decree nisi can be heard to be pronounced;
(7) there is no record of the decree nisi anywhere on the file either that it be listed or heard or pronounced;
(8) no decree nisi was ever sent to the parties.

Cohen J said the signed D30 certificate of entitlement did not amount to a decree nisi, and further stated:-

            ‘The pronouncement of the end of a marriage is normally a public event and formalities are set out.  They can be adjusted or abridged by judicial decision but they cannot be completely        overlooked.’

W’s Counsel argued that even if there was no decree nisi pronounced on 25 January (1) the defect does not undermine the order in circumstances where both parties acted throughout as if there had been a decree nisi pronounced and (2) to take any other course would be a breach of natural justice.

The Judge dealt with the first argument by saying the law is clear, as set out in a series of cases including Pounds v Pounds [1994] 1 FLR 775, JP v NP [2015] 1FLR 659 and K v K [2017] 1 FLR 541 and he referred to the summary contained in the judgment of Cobb J at para.20 where he paraphrases Eleanor King J (as she then was) in JP v NP:

The district judge had power under rule 29.15 of the FPR 2010 to direct that a judgment shall take effect from such later date as the court may specify.

 It is necessary to look at whether the judgment delivered at the end of a contested hearing is a 'final determination taking effect from the moment of judgment' or 'an indication of outcome with the consequential order to be drawn and made at a later date (here upon the making of decree nisi).

If the order is to be made at a later date (i.e. after decree nisi), there is no necessity or requirement for any fresh appraisal.

If the court purports to make an order or provides for a judgment to take effect prior to decree nisi, the resulting order will be a nullity…

As to the second, after hearing counsel’s arguments based on void and voidable marriages, he simply said ‘Is it a breach of natural justice? No, in my view’.

Cohen J said it is possible for the judge to conduct a hearing and come to a conclusion but with the order only coming into effect after decree nisi but the parties agree that in this case the order was intended to take immediate effect and, therefore, Rule 29.15[1] cannot remedy the situation.

To say that there is no further requirement runs counter to the authorities that I have cited and I respectfully disassociate myself from the commentary in the Family Court Practice at p.1444 where by reference to Day (Day v Day [1980] FLR 381 ) the authors say:

"At this stage (i.e., the court having been given notice of the date of pronouncement) no decree or final order has been made, but this intermediate phase has been defined by the Court  of Appeal as equivalent to a decree ..."

I do not read Day as saying that at all.  A certificate of entitlement is not the equivalent of a decree.

The parties financial remedy costs totalled £100,000 but were left with no final order.  The judge saying ‘It was a great pity that no one picked up the absence of the expected paper work over the course of the following 18 months’.  The judge indicated that the same order would likely be made again and invited the parties to apply for directions that would obviate the need for remittance to a DJ.

[1]  29.15 A judgment or order takes effect from the day when it is given or made, or such later date as the court may specify.