Celebrity divorces reported in the media often wrongly give the impression that the parties are divorced because a hearing has taken place where the court has declared them to be divorced. Regrettably, the journalists breathlessly reporting this have failed to understand what the procedure is.
These hearings involve the court pronouncing the conditional order (known before April 2022 as a decree nisi). They are rarely attended by the parties or their solicitors, despite the impression given in a scene in The Crown where a hearing takes place in which the then Prince and Princess of Wales receive their decree nisi in their divorce. On Netflix, Their Royal Highnesses were represented by counsel at the pronouncement, which may have been the case, bearing in mind their eminence; however, in The Crown everyone else receiving their decrees nisi that day also seem to be represented, which is unlikely.
What the media (especially the tabloids) often fail to understand, is that the conditional order is not the moment where the parties become divorced.
The conditional order has to be followed by a subsequent application no less than six weeks later in which the applicant seeks the final order (known as a decree absolute in divorces commenced before 5 April 2022). It is only at that point that the parties are divorced. No hearing usually takes place and the marriage is brought quietly to an end (so quietly that the tittle-tattle obsessed media usually doesn’t notice).
It often takes longer than six weeks for this to happen, usually because it is generally considered good practice to delay obtaining the final order until all financial matters have been resolved and the court has made a financial order. (Where the financial order contains a pension sharing order, good practice is to wait until the order is 28 days old before bringing the marriage to an end by seeking the final order). Sorting out the finances in a divorce can be a lengthy process, often taking up to 18 months, possibly much longer, depending upon the circumstances.
Even then, there is often one final hurdle to clear. In most cases, the court will make the final order without the involvement of a judge. It is an administrative step taken by a member of the court staff. However, where the conditional order is more than 12 months old, the court requires a reason why there has been a delay in seeing the final order.
FPR2010, rule 7.19(5)
(5) Where the notice is received more than 12 months after the making of the conditional order, it must include or be accompanied by an explanation in writing stating why the application has not been made earlier.
The reason provided is invariably the same: the applicant was advised by his or her solicitor to delay the application for the final order until financial matters had been resolved and a financial order made by the court.
Before the introduction of no-fault divorce in April 2022, the test was slightly different; the applicant (traditionally then called the petitioner) had to confirm to the court whether the parties had not cohabited since the decree nisi had been made, that (if the petitioner was a woman) no child had been born to the petitioner since the decree nisi, or that (where the petitioner was a man) that as far as he knows the his wife hasn’t had a baby since the decree nisi, and an explanation of why there had been a delay.
FPR 2010, r. 7.32
(3) Where notice is received more than 12 months after the making of the decree nisi or the conditional order, it must be accompanied by an explanation in writing stating
a) why the application has not been made earlier;
b) whether the applicant and respondent have lived together since the decree nisi or the condition order and, if so, between what dates;
c) if the applicant is female, whether she has given birth to a child since the decree nisi or the conditional order was made and whether it is alleged that the child is or may be a child of the family;
d) If the respondent is female, whether the applicant has reason to believe that she has given birth to a child since the decree nisi or conditional order was made and whether it is alleged that the child is or maybe a child of the family.
Therefore, the new test is much simpler, but also much vaguer.
The court used to be able to deal with this very quickly, usually within a few days. I used to have a secretary who would walk over to the court and persuade the court staff to deal with the application immediately, and even get the judge to give the necessary permission, within about half an hour.
However, as with almost everything at court now, it takes much longer. It often leads to an irritating delay of about a month in which the court officer refers the matter to a judge who considers if the reason for the delay is justified and then gives the necessary permission to apply.
Solicitors and barristers involved in financial remedy applications often try to avoid this by asking the judge at a financial hearing to give the necessary permission to apply. This worked for a while, but now that pretty much all divorces take place online, the online divorce until does not make the final orders any quicker than when they refer the final order application to a judge. I have had a number of cases where the district judge gives the permission at a financial hearing, and where the online divorce unit ignores this and refers the application to another judge, who then gives permission again for the application to be made (a legal nonsense).
The new no-fault divorce legislation is very vague about what is necessary. The old legislation made it clear that the judge had to give permission. The new legislation says nothing about permission, and says just that a reason must be provided (but not what an appropriate reason for the delay is. When I first read the legislation, I was tempted to think that any reason might do, not matter how silly (Judge, my client delayed the application for the final order just in case the respondent was made a peer of the realm in the New Year’s Honours…”)
There has now been a case reported where the court had to decide what reason for the delay might be appropriate. In HK v SS, the parties reconciled for a period of 15 months after the conditional order was made. After the reconciliation failed, the applicant applied for the final order. The deputy district judge to whom the application was referred decided that the natter should be referred onto to the Lead Divorce Judge, HHJ Simmonds, as there is a lack of guidance about how the court should deal with such applications where there has been a significant period of attempted reconciliation.
The judge said that that an attempted reconciliation takes times and that the parties “should be permitted that time”. They should not “feel the pressure of an artificially imposed court timetable.” In other words, the court does not want people to be deterred from trying to reconcile by worrying that if they try, they then won’t be able to divorce if it doesn’t work.
As the old divorce law allowed divorces on the basis of two years’ separation where the parties consent, the judge decided that supported an argument that “two years is a reasonable period to allow parties space and time to decide their future and decide if they wished to remain separated.”
The judge held that any period of reconciliation under two years ‘should be seen as an attempt at reconciliation but not a bar to the court allowing a final order to be made’. Therefore the applicant is able to seek the final order.
The full judgment can be read here.
The two year period suggested by the judge is not an absolute rule, as the court has wide discretion, but it is very useful guidance in the probably small number of cases where there is a lengthy, but unsuccessful, attempt at reconciliation after the conditional order has been pronounced.
19 January 2024
If you would like to arrange a consultation, please call 01206 848426 or click here.