In a divorce, the application can apply for the final order, thereby bringing the marriage legally to an end, 6 weeks after the date of the conditional order. However, there can be good reasons to delay this.
This was highlighted recently by the somewhat unusual submissions to the court in the divorce of Dale Vince and his wife, Kate. Mr Vince wishes to apply for the final order so that the marriage is brought to an end. Mrs Vince is opposing the application, arguing that Mr Vince, who is prominent donor to the Labour Party, might be rewarded with a peerage. If the divorce is made final, she worried that she will never get to be Lady Vince.
(If Dale Vince sounds familiar, it may be because, amongst other things, he and his first wife had a high profile family court case in 2016 where she successfully brought a financial claim against him, despite having divorced 23 years before. The decision that she could still pursue her claim ended the assumption that an excessive delay in bringing a financial claim meant that the court would not entertain such a claim. I blogged about this at the time and you can read it here.)
Frustratingly, the media coverage about his latest case suffers from such reports’ usual failure to provide enough detail to understand precisely what issues are before the court. All that appears clear is that Mrs Vince is making a financial claim against Mr Vince, and that Mr Vince wants his divorce now, rather than waiting until financial issues have been decided. It is not clear if Mr Vince or Mrs Vince is the applicant in the divorce, or if Mrs Vince is the respondent and has applied to the court under section 10 (2) Matrimonial Causes Act 1973 for the court to consider her financial circumstances after the divorce (a somewhat rare application, different to the much more common financial remedy application, but which has the effect of preventing the final order being made until financial issues are resolved).
Mrs Vince’s objection to the final order being granted is quite novel, but apparently not without precedent; her KC cited a 1993 case in which “the early obtaining of a decree absolute was held to be an actionable loss” where the husband stopped his estranged wife from “sharing in her husband’s knighthood”.
I won’t claim to be an expert on the rules about peerages and knighthoods. A quick Google search tells me that if Mr Vince become a life peer and then is divorced, Mrs Vince would still be entitled to style herself as Lady Kate Vince as long as she keeps her ex-husband’s surname and does not remarry someone without a title. The rules for the divorced wife of a knight are similar.
For the record, Mr Vince says that there has been no suggestion that he might be in line for a title and thinks it unlikely that he would be granted one, due to concerns about cronyism in politics.
Delaying the final order until financial issues have been resolved is not unusual. It’s generally considered good practice to do so, usually for reasons to do with pensions.
Firstly, once the divorce is final, if one of the parties then dies, the other former spouse will not receive a widow’s or widower’s pension or be entitled to a bereavement support payment. After one spouse dies, the other spouse also cannot pursue his or her claim for a financial remedy arising out of their divorce; if insufficient provision has been made for them in their deceased spouse’s will, he or she would have to make a claim against their estate under the Inheritance (Provision for Family and Dependants) Act 1975. Therefore, it is a good idea to delay applying for the final order until the bitter end, just in case.
Secondly, getting the final order before financial matters have been resolved is potentially hugely problematic if the case involves a claim for a pension sharing order.
It is safest to wait because a pension sharing order comes into effect on the later of the granting of the final order or 28 days from the date of the pension sharing order. Until a pension sharing order has come into effect, it cannot be enforced. Therefore, if the divorce is finalised before 28 days have passed this leaves the beneficiary of a pension sharing order at risk. If their ex-spouse dies before the 28 days have passed, the pension sharing order has not come into effect and the order cannot be enforced. The final order will have ended the marriage , and the former spouse will no longer have any protection of any widow’s/widowers’ pension rights or benefits.
If the other spouse died before the final order is made, while the pension sharing order will not have come into effect, the surviving spouse would be protected because he or she retains her widow/widow’s pension rights.
If you are the applicant in a sole divorce application, you have a fair bit of control over when the final order is applied for. If you wait to apply, the respondent must apply on-notice to the court for the final order; i.e. there must be a hearing at which the court will decide if it should allow the respondent to apply. In Thakkar v Thakkar, a Court of Appeal case from 2016, the court accepted that that a husband’s on-notice application for decree absolute (the old name for a final order), should be dismissed. Section 9(2) Matrimonial Causes Act 1973 says that the court may exercise its powers to delay the pronouncement of decree absolute [final order] and so the power is discretionary. It can delay the granting of decree absolute [final order] if ‘special circumstances’ exist. In that case, which involved a billionaire husband, the court accepted that there were special circumstances.
However, it would not necessarily do that in other cases. In Dart v Dart in 1996, the Court of Appeal was very clear that the presumption, in favour of pronouncement of the decree absolute, weighs heavily against the finding of special circumstances, so a delay in making the decree absolute will be very much the exception to the rule.
Most cases where the early making of the final order is a concern are due to worries that a spouse will lose a widow’s or widower’s pension benefits if the other spouse dies after the final order has been made. Pensions are an issue in a huge number of divorces, probably in a majority of cases. There is nothing particularly special about the circumstances int these cases.
Therefore, an application under section 10 (2) Matrimonial Causes Act 1973 is the solution. It will stop the final order being made for the item being. However, starting such an application then commits the applicant to an expensive and lengthy court process.
I suspect that family lawyers would quite like a system where a divorce cannot become final until the court has made a financial order and at least 28 days has passed from the date of any pension sharing order. It would certainly stop the above problems. The difficulty is that there are many people who are unable to resolve their financial issues, cannot afford legal representation and who cannot seek a consent order from the court. Even where finances are agreed, obtaining a financial consent order is a complex and technical job that few non-lawyers could do on their own. The Family Court struggles to deal with financial cases where the parties are not legally represented; it is very complex to do it properly without legal representation and there is a limit to how much the court can do to assist the parties.
There are other cases where there are no assets or pensions and no financial issues to be resolved. The parties in those cases strictly speaking should still seek an financial clean break order from the court to prevent any further claims being made, but they rarely do, assuming no doubt that their ex is never going to make a claim (if they have any understanding that this is still potentially possible; many are unaware of this possibility).
Generally speaking, it is better for both parties to delay getting the final order until all financial issues have been resolved and, where there are pension sharing orders, to wait for 28 days after the order is made before applying. A concern about losing the right to a courtesy title if your ex is ennobled or knighted is not likely to be an issue for most people and to be honest, looks a little odd. After all, while it might be actionable, how do you put a value on a courtesy title? And what self-respecting person would want to parade around with a courtesy title deriving from someone they had just divorced?
5 October 2024
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