Please note this content was originally published in the Family Law Journal. March 2021 edition, best practice section.
Decree absolute dissolves a marriage. Although the application is simple (providing the requisite requirements are met – see Family Procedure Rules 2010, r 7.32) and the effect in a sense is very straightforward, the timing of that application can have far reaching consequences. This article is intended to highlight some of the matters that need to be considered before an application for decree absolute is made.
Should you wait until financial matters have been resolved before applying for decree absolute?
If financial matters have not been resolved, it is important to consider carefully if there may be detrimental financial consequences of applying for decree absolute. For example, if one of the parties dies after decree absolute has been made, but before the financial remedy claims have been resolved, the other party may lose valuable pension benefits that they may otherwise have been received as the widow or widower of the deceased.
Alternatively, where a matrimonial home is in the sole name of one of the spouses, it may be important to preserve the other’s right to occupy the matrimonial home under s 30 of the Family Law Act 1996 ("FLA 1996"). Under this section, both spouses have a right to enter and occupy the matrimonial home until decree absolute, unless the court orders otherwise under an occupation order. Where the property is in the sole name of one spouse, the other spouse may have registered their home rights to protect their rights of occupation and ensure any potential buyers and lenders are aware of their rights. These rights expire on decree absolute.
If financial remedy claims have not been resolved by the time decree absolute has been made, the spouse will have to make an application under s 33(5) of the FLA 1996 to extend their home rights beyond decree absolute.
In some cases, obtaining decree absolute before the financial remedy claims have been resolved may have adverse tax consequences if there are onshore or offshore trusts or offshore assets.
It is therefore important to consider in each case whether to wait before applying for decree absolute.
What if you act for the respondent?
Where the weaker financial party is the respondent in the divorce proceedings, and they would be adversely affected by the decree being made absolute before the resolution of financial matters, an undertaking should be sought from the petitioner that he or she will not apply for decree absolute before the financial remedy claims have been finalised and approved by the court.
If the petitioner refuses to give the requested undertaking, and if the petition is based on two or five years’ separation, an application should be made under s 10(2) of the Matrimonial Causes Act 1973 ("MCA 1973") as soon as decree nisi is pronounced. The court does not have power to make financial orders under this section, but it can delay decree absolute until the petitioner has made satisfactory financial provision for the respondent.
Even where s 10(2) of the MCA 1973 is not available, the court has a discretionary power under its inherent jurisdiction to delay decree absolute (Miller Smith v Miller Smith (No 2)  EWHC 3623 (Fam),  2 FLR 351). However, the mere fact that the financial remedy proceedings have not yet been determined is not a sufficient reason to delay the grant of a decree absolute. When prejudice is established, it is not necessarily conclusive, as the other spouse may suffer prejudice if the decree is not made absolute. The court must weigh the respective prejudices suffered by the parties and the ultimate task for the court is to ensure that the discretion is exercised justly in the circumstances of the case (see the Hong Kong case of J v V  HCMC 3/2012).
Applying for decree absolute once the order is obtained
Once the financial order is made consideration must be given to applying for decree absolute. The financial order is subject to decree absolute as set out in s 23(5) of the MCA 1973. Therefore, if the paying party dies after the financial order is made but before Decree Absolute, the order falls away; it is not effective and cannot be enforced. The receiving party will inherit under the Will (if provided for) and will receive death benefits under the pension, but if no (or insufficient) provision is made via either of those routes, they will have to make an application under the Inheritance Act (if, of course, the paying party is domiciled in England and Wales) (see McMinn v McMinn (ancillary relief: death of party to proceedings)  EWHC 1194 (Fam),  2 FLR 823). If the paying party is not domiciled here, they could be left without remedy.
Delaying decree absolute after the order: pension sharing
One possible reason for a slight delay in applying for decree absolute once the order has been made is where a pension sharing order has been made. A pension sharing order takes effect from the date of decree absolute or, if later, seven days after the date of expiry of the time for appeal (ie 28 days after the order is made). The date the pension sharing order takes effect is called the transfer day.
What happens if the transferor dies after the Order and after Decree Absolute but before the transfer day? The rest of the order will take effect and can be enforced, but the pension sharing order will not take effect. This means that the recipient will lose the benefit of the pension sharing order and in addition will have lost their widow or widower’s pension because they are no longer married.
Is this a reason to delay Decree Absolute? That will depend. You need to think about the balance of overall assets as agreed or ordered and consider what is in the best interests of your client. Is it better to have an order that can be enforced in the event of death even though the pension share will be lost or is it better to lose the benefit of the order, but retain the widow/widowers pension?
Whether to apply for decree absolute must be considered on a case by case basis, with clear advice for the client on the potential consequences.
If you require further information about anything covered in this briefing, please contact Claire Gordon, or your usual contact at the firm on +44 (0)20 3375 7000.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, March 2021