Applications to delay a final order of divorce

Insight

28.08.2025

When acting for the financially weaker party on a divorce, it is common to seek an undertaking from the other party that they will not apply for the final divorce order before financial remedy claims have been finalised and approved by the court. The reason for this is to protect the financially weaker spouse from financial prejudice if the financially stronger party were to die before a settlement is reached, as they would lose their entitlement to a widow's or widower's pension, death in service or insurance policies, thus potentially leaving them financially vulnerable.

Where this cannot be achieved by agreement, the Matrimonial Causes Act (as amended by the Divorce Dissolution and Separation Act 2020) provides a route to delay the final order of divorce. This column considers the law, following the amendments introduced with no fault divorce in 2022, and the practical steps that must be taken when making such an application.

Where the applicant wishes to delay final order

An applicant for divorce is entitled to apply for final order 43 days (6 weeks and 1 day) after the conditional order is pronounced. If the applicant does not apply when entitled to do so, pursuant to s 9(2), MCA 1973, the respondent can apply once a further three months have elapsed. The respondent must make their application for final order on notice using the Part 18 procedure. In order to delay the making of final order, the applicant would need to oppose this application.

When considering whether to grant the final order where it is opposed by the applicant under s 9(2), MCA 1973, the test applied by the court has been described 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 the 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.” (per Butler-Sloss LJ in Dart v Dart [1996] 2 FLR 286, and applied by Moor J in Thakkar v Thakkar [2016] EWHC 2488 (Fam), [2017] 2 FLR 399)

Whilst both Dart and Thakkar were decided prior to the changes introduced in 2022 (and therefore refer to decree nisi and decree absolute rather than conditional and final order), the wording of s 9(2) is unchanged and these provisions have not yet been revisited by the courts. As the law currently stands therefore, an application to delay the granting of final order under s 9(2), MCA 1973 is only likely to succeed in exceptional circumstances.

Where the respondent wishes to delay final order

When acting for a respondent to a divorce who is the weaker financial party, practitioners must be alive to the fact that the applicant will be able to apply for final order of divorce 6 weeks after the conditional order, potentially leaving the applicant in a vulnerable financial position. This also applies where the conditional order was made on a joint application but the weaker financial party has since withdrawn from the application (s 10(2)).

However, respondents to the divorce are given a route to delay the final order under s 10(2)–(4) of the MCA 1973.

The law

Pursuant to s 10(3) the court must not make the divorce order final unless it is satisfied:

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

When making this determination s 10(3A) requires the court to consider all the circumstances including –

the age, health, conduct, earning capacity, financial resources and financial obligations of each of the parties to the marriage, and
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.

Finally, the court may nevertheless order a final order of divorce without further delay if:

there are circumstances which make it desirable to do so, and
the applicant has provided a satisfactory undertaking to make financial provision for the respondent, as approved by the court.

Where a conditional order is made final following an application under these provisions, the court must make a written record of the reasons for deciding to make that final order (see r 7.22 of the Family Procedure Rules 2010).

What is a “satisfactory undertaking”?

Again, although the case law in this area pre-dates the amendments introduced in 2022, those older cases provide guidance. It is clear that the undertaking must include financial proposals (per Grigson v Grigson [1974] 1 All ER 478). The proposals do not need to be specific in all of the details, but there must be a formulated proposal on the applicant's part regarding the kind and amount of financial provision that they will make (Grigson at 482).

Practicalities

It is important to note at the outset that any s 10 (2) application will be considered and heard in open court.

In order to make an application under s 10, MCA 1973, a respondent to a divorce will need to file a Form B. The application can only be made once the conditional order has been granted. The application must therefore be made in the period of 43 days between conditional order and the first date upon which the applicant can apply for final order. The application then stays the proceedings such that the final order cannot be made if a s 10 application is pending.

The application can be lodged via the online divorce portal. It is also advisable to call the divorce service centre number at the same time to ensure that the proceedings are stayed without delay.

Although the court has no powers to make financial orders under s 10(2) and can only delay the final order of divorce, the application is considered to be an application for a financial remedy and therefore the standard procedure under Part 9 applies. The court will therefore list a First Appointment, and if there are already proceedings under ss 23 and 24, MCA 1973, it will usually be heard at the same time.

Inconsistency in approach?

As set out above, there are routes to delaying the final order of divorce whether acting for an applicant or a respondent. However, the court's approach is different in each case, and this may lead to inconsistencies.

If an applicant wishes to proceed to a final order of divorce but the respondent objects, the applicant will need to satisfy the court either that they should not be required to make any financial provision for the respondent, or that the financial provision that they have provided is reasonable and fair or the best that can be made in the circumstances. Alternatively, they must have undertaken to make financial provision for the respondent, as approved by the court.

In contrast, a respondent who wishes to proceed to a final order of divorce will be able to do so unless the applicant can show that there are exceptional circumstances that justify a delay to the order being made.

It remains to be seen whether the court's approach to applications made by respondents will change to ensure that it is consistent with the recently amended statute.

Religious divorce

Whilst not the focus of this column, for completeness, it is important to note that either party can apply under s 10A, MCA 1973 which provides that the court may order that a final order is not granted until a declaration is made by both parties that they have taken the necessary steps to obtain a religious divorce.

The application should be made on Form D11 with a draft order. Again, this can be done via the online divorce portal followed by a telephone call to the divorce centre to ensure that it has been received and the proceedings stayed.

As can be seen, it is important for practitioners to have a good understanding of the legal position so that they may act quickly when necessary in order to protect their clients' interests.