Can I have a Divorce now?

Why would a final decree of divorce (Decree Absolute) be delayed?

Divorce, Decree Nisi & Decree Absolute how does this all work?

On 28th October 2016 the news broke of the latest development in the Thakkar case due to the Husband’s application for Decree Absolute being denied.

By way of a brief background to the case, Mr & Mrs Thakkar were married in 2008 and separated in February 2013. Mrs Thakkar issued her Divorce Petition in June 2014 and at the same time issued her application for Financial Remedy which is an application for the Court to resolve the matrimonial finances. It is relevant that Mrs Thakkar is the Petitioner as it is usually this party who applies for the Decree Absolute, which is the final decree of Divorce. The Thakkar’s Decree Nisi was pronounced on 30th July 2015, which meant that Mrs Thakkar could apply for her Decree Absolute on 11th September as the Matrimonial Causes Act 1973 (MCA) provides that the Petitioner can apply six weeks and one day after the pronouncement of the Decree Nisi.

Mrs Thakkar did not wish to apply for the Decree Absolute until the matrimonial finances were resolved. It is not unusual for parties to do this, although there are rare cases where it would actually have a material effect or prejudice if the Decree Absolute was granted prior to financial orders being made. Mrs Thakkar had sought Mr Thakkar’s (the Respondent’s) agreement not to apply for the Decree Absolute but in any event he made that application. Although unusual, the Respondent to a Divorce can apply for the Decree Absolute three months after the first date upon which the Petitioner could have applied for it (i.e. six weeks and one day after the Decree Nisi). Mr Thakkar did this, which lead to the matter being dealt with by the Court. The final decision was handed down on 8th June 2016 whereby Mr Justice Moor refused Mr Thakkar’s application and refused to grant the Decree Absolute.

The MCA 1973 s. 9(2) gives the Court the power to deal with an application made by the Respondent and the power is a discretionary one - allowing the Court to deal with the case as it thinks fit. There is little case law on this issue but the Judge in the Thakkar case relied on the case of Dart v Dart  which is the only Court of Appeal decision on the matter. In short, it provides the test that the Court will grant the Respondent’s application unless the Petitioner is able to show special circumstances.

Mr Justice Moor clearly found Mrs Thakkar to satisfy this test as he refused to make the Decree Absolute. So, what were Mrs Thakkar’s special circumstances? To answer this, you have to be aware of the main dispute within the matrimonial finances case. Mrs Thakkar asserts that Mr Thakkar is a billionaire, where he only declares assets of around £500,000.00. The dispute relates to the company that Mr Thakkar runs and whether he does so for his own benefit or that of a Foundation, whose main beneficiaries are his Mother and Sister. It appears from the Judge’s comments in his judgement that the fact that all of the assets within that Foundation were held overseas weighed heavily on his decision. If an Order were made in favour of Mrs Thakkar over some of the Foundations assets then it could be relevant in the jurisdiction where those assets were held if Mrs Thakkar was a wife or former wife. For example certain assets in certain jurisdictions can only be dealt with if the party seeking them is a wife, not a former wife. The Court did not want to prejudice Mrs Thakkar’s position in the future pending the resolution of the matrimonial finances. I do not believe Mrs Thakkar would have been successful had she been unable to show a possible prejudice to her if the Decree Absolute was made.

It may be that Mrs Thakkar is unsuccessful in proving that the Foundation is an asset of Mr Thakkar (as the Judge was not making any findings about the financial case in these proceedings) but if she is, she will be to do so without difficulty. Therefore in this case Mr and Mrs Thakkar will remain married until the resolution of their financial case, at which point the court will be asked again to grant the parties Decree Absolute, which Mrs Thakkar will not be able to dispute at that point.

In some cases the Petitioner may delay in applying for the Decree Absolute however it is now clear that unless the Petition can prove special circumstances for the delay (akin to what Mrs Thakkar illustrated) the Respondent is likely to be successful in his application for Decree Absolute should he make it once he is able to do so.

For further information and advice concerning divorce and family issues please contact Louise Ballantyne or the Family team  on 01733 882800 or email direct at info@hcsolicitors.co.uk .

Author

Louise Ballantyne

Solicitor

louise.ballantyne@hcsolicitors.co.uk

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This article has been prepared for general interest and information purposes only; it does not constitute legal advice and should not be relied on as such. While all possible care has been taken in the preparation of this article, no responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by the firm or the authors.