Following the breakdown of their marriage the husband issued a divorce petition and the wife applied for a financial remedy order. No agreement could be reached in respect of their financial separation and the matter was listed for a final hearing. It became apparent to the judge at that hearing that the time estimate was insufficient, such that the matter would go part-heard, and also that the divorce itself had not been progressed and no decree nisi pronounced. Recognising that, pursuant to section 23 of the Matrimonial Causes Act 1973, the court would lack the jurisdiction to make a final financial remedies order prior to the pronouncement of decree nisi, the judge signed a certificate of entitlement to a decree and stated in open court that she had “dealt with” the decree nisi issue. However, the certificate was not advanced by the court office. Neither the parties nor their advisors recognised that the financial matter was progressing without a decree nisi. When giving judgment some months later the judge referred to having “pronounced decree nisi” at the first part of the hearing and made a final financial order to be implemented forthwith. The husband’s appeal and application to vary the award, together with the wife’s cross-application for a declaration under the court’s inherent jurisdiction that a decree nisi had in fact been pronounced by the judge at the earlier hearing, came back before the court. Upon consideration of the hearing transcript and the Family Procedure Rules the recorder determined that no decree nisi had in fact been pronounced pursuant to the certificate of entitlement signed by the judge and that, accordingly, the final financial remedies order said to take immediate effect was a nullity with the consequence that the husband's applications were redundant.
On the wife’s appeal—
Held, appeal dismissed. Where: (i) the original trial judge had signed a certificate of entitlement before going into court; (ii) the judge said the issue had been “dealt with” and not that a decree had been pronounced; (iii) no notice of the decree hearing had been given to either party pursuant to Fam PR r 7.18; (iv) no determination had been made as to whether or not the decree should not be pronounced in public in the usual way; (v) there was no listing of the decree nisi; (vi) there was no tape on which a decree nisi could be heard to be pronounced; (vii) there was no record of the decree nisi anywhere on the file, either that it be listed or heard or pronounced; and (viii) no decree nisi was ever sent to the parties, the recorder had plainly been correct to find that the use of the words “dealt with”, along with the judge’s (clearly erroneous) reference to the decree having been pronounced, could not rectify the deficiencies set out above. The pronouncement of the end of a marriage was normally a public event with formalities set out and, although they could be adjusted or abridged by judicial decision, they could not be completely overlooked. The wife’s alternate assertion that even if there was no decree nisi pronounced by the judge that defect did not undermine the financial order, in circumstances where both parties had acted throughout as if there had been a decree nisi pronounced, was not supported by the authorities. Although it was possible for a judge to conduct a hearing and come to a final conclusion with the order then coming into effect on a later date after decree nisi, that was not what had happened in the present case and the order had clearly been intended to take immediate effect such that FPR r 29.15 could not remedy the situation. Further, the submission that as the grant of the certificate of entitlement was the last judicial act and that, therefore, what happened thereafter was purely administrative with no further requirement ran counter to the authorities. Contrary to the commentary in Family Court Practice at p 1444 a certificate of entitlement was not the equivalent of a decree. Accordingly, and as there had been no breach of natural justice, the wife’s appeal was to be dismissed (paras 21–24, 26, 32–34, 35–37, 41).
Ian Kennerley (instructed by DMA Law Ltd, Darlington) for the wife.
Brian Mather (instructed by Silk Family Law Ltd, Newcastle Upon Tyne) for the husband.