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After considering the statutory powers and following legal argument from both sides, His Lordship also found that there is an “inherent jurisdiction” of the High Court to delay making a decree absolute in appropriate cases.
The case of England v England (1980) 10 Family Law 86 was a Court of Appeal decision where the court delayed decree absolute until a maintenance order had been made in favour of the children.
Applying for the decree absolute It is a straightforward process to obtain a decree absolute.
A single sheet application in a standard form is signed and handed in to the court office, together with a fee of £40.
One example is when vital benefits could be lost if one party was to predecease the other without a court order being in place for a financial settlement – and if the losing party cannot properly be compensated out of the other assets for the loss.
It is very rare indeed for someone to die during divorce proceedings, but it can still happen.
It is possible to be fully divorced without a financial settlement being resolved.
At decree nisi stage the parties are almost, but not quite, divorced.
Benefits such as a widow’s pension, automatically payable under a husband’s pension scheme, may be lost if the husband dies suddenly and there is a decree absolute, but the financial side is still rumbling on and no financial court order is in place.Perhaps emotionally, it seems a step too far, too soon – and the Petitioner, despite having initiated the process, cannot bring him self or herself to take the final step.So the Respondent may also apply, three months after the earliest date that the Petitioner could have done so, and that application too is usually a formality.For example, if there is a potential bankruptcy on the horizon and a financial settlement needs to be implemented.Or if there is a new baby on the way, and an urgent need to remarry.For most, it is the beginning of a new life and new, guilt-free relationships.In some cases there is, in fact, a rush to decree absolute.The court office seals and issues a certificate of decree absolute.Sometimes, however, the Petitioner refuses to apply.The Court of Appeal followed the much earlier cases of Bromberg v Bromberg (1962) and also in Parks v Parks (1971), where Lord Denning in the Court of Appeal had stayed making the decree absolute because the financial settlement between the parties was set aside for material non-disclosure. ) The more recent case (although unreported) of Dart v Dart in 1995 was also a Court of Appeal case.The Court held that the husband, who was also seeking his decree absolute, was entitled to it unless the wife “could show special circumstances to defer it”. Citing Dart, Mr Justice Baker held that the power to delay decree absolute “is an exercise of discretion of the trial judge but that exercise of discretion weights the granting of the decree absolute against the special circumstances very heavily in favour of the grant.