On such an application the court 1 shall not make the decree absolute unless it is satisfied a that the petitioner should not be required to make any financial provision for the respondent, or b that the financial provision made by the petitioner for the respondent is reasonable and fair and the best that can be made in the circumstances section 10 3 , but 2 may, if it thinks it fit, make the decree absolute, notwithstanding the requirements of section 10 3 if a it appears that there are circumstances making it desirable that the decree should be made absolute without delay, and b the court has obtained a satisfactory undertaking from the petitioner that he will make any such financial provision for the respondent as the court may approve.
This is the first statutory ground upon which a party may apply for a Decree not to be made Absolute. Call Back Request To request a call back please enter your details in the fields below and a member of our team will call you back at the time requested.
How to stop Decree Nisi from being made Absolute. Byron James, Barrister at Expatriate Law, reviews the law, practice and procedure relating to the prevention of a Decree Nisi being made in to a Decree Absolute within divorce proceedings Just as the world is increasingly asking how to make the divorce process easier, the question remains as to how to stop that process once it has started.
What is your name? However, an informal agreement between parties even combined with decree absolute will not prevent a financial remedy claim from being made or being successful — in the case of Briers v Briers it was found that the parties had not reached a concluded agreement, despite both parties having acted upon it.
In the event that you are able to come to an agreement between yourselves with relatively little difficulty, you should revert to a lawyer to have the agreement drafted into a formal legal document that would dismiss any further claims that you may have against one another. The Family Procedure Rules state that an application for a financial order may be made by Form A at any time after a petition for divorce, nullity or judicial separation.
This means that any time after a divorce petition has been filed with the court including after decree absolute an application for financial remedy can be made provided that such an application has not already been disposed of. There is no statutory time limit on financial claims stemming from divorce although the provision available may be affected by any delay. However, if a party remarries this prevents only that party from applying for a property adjustment order, periodical payments or lump sum provision although it is still possible to apply for a pension sharing order for their own benefit.
It is noted that this does not prevent applications for the benefit of children. It is not unusual within family matters for a petitioner to agree not to apply for decree absolute until financial remedy proceedings have been dealt with for example by undertaking not to apply for decree absolute until there is a sealed court order.
Frequently couples will deal with their financial position at the same time as commencing divorce proceedings. Applications can also be made to delay decree absolute in cases where the parties may need to dissolve the marriage in accordance with religious as well as civil law.
There may be other reasons for a respondent wishing to delay decree absolute for example where there may be more than one jurisdiction involved , in which case an application may be made to the court to exercise its general powers to delay making decree absolute. In some circumstances, obtaining decree absolute before financial matters have been resolved can have an impact on the tax position and on the ability to make claims against certain financial assets such as those that might be held offshore.
It also impacts financial matters upon death. This can be of particular importance where financial matters have not yet been resolved between divorced couples. In the event that financial remedy proceedings have not been resolved, this can create a real detriment to the surviving party. In the event that financial matters have been dealt with and a pension sharing order is made, there is often a delay of 28 days between the sealed order and the application for decree absolute.
This is because the pension sharing order can only take effect on the latter of the period 7 days after the expiry for appealing the order 28 days or decree absolute. Therefore, if the decree absolute is made prior to the period of 28 days expiring and the pension member dies, the pension share will not be implemented and the receiving spouse will not be entitled to any spousal pension benefits.
This can create significant difficulties for the intended recipient of the pension sharing order, which may not ever be properly recompensed. Whilst there is the potential for parties in such situations subject to meeting certain criteria to make a claim under the Inheritance Provision for Family and Dependants Act , these can be costly proceedings and lead to additional uncertainty, distress and delay.
There are some circumstances, however, when there are good reasons to delay it. One such reason may be the risk to the client of financial disadvantage should the petitioner die before financial issues have been resolved. Under s. Section 10 states that with emphasis added :. It should be noted that the making of proposals for financial provision is not enough to satisfy s.
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