Jersey Unreported Judgments

[2010]JRC097B

royal court

(Family Division)

25^th May 2010

IN THE MATTER OF RR

AND IN THE MATTER OF REASONS FOR REFUSAL OF APPLICATION TO DELAY ISSUE OF DECREE ABSOLUTE UNTIL AFTER RESOLUTION OF ANCILLARY MATTERS

Advocate M. R. Godden for the Petitioner.

Advocate H. J. Heath for the Respondent.

The Co-Respondent was not present and was not represented.

judgment

the registrar:

1.        In this case, a petitioner ("husband") who has already obtained a decree nisi of divorce against the respondent ("the wife") on the grounds of her adultery is on the point of applying to the Court to make the decree absolute.  In anticipation of him doing this, the wife has applied to the Court to stay any such application "until all ancillary matters have been agreed between the parties". 

2.        Article 20(1) of the Matrimonial Causes (Jersey) Law 1949, as amended, provides as follows:-

"Every decree for a divorce, for nullity of marriage or of presumption of death shall, in the first instance, be a decree nisi not to be made absolute until after the expiration of such period, not exceeding 6 months, from the pronouncing thereof, as may be prescribed."

3.        Rule 41 of the Material Causes Rules 2005 provides:-

"Decree absolute on lodging notice

(1) Subject to Rule 42(1) and (2) and Rule 43, an application by a spouse to make absolute a decree nisi pronounced in the spouse's favour may be made by lodging with the Greffier a notice of application in Form 12.

(2) The Greffier shall make the decree absolute if satisfied-

(a) that no-

(i) application for rescission of the decree or for re-hearing of the cause,

(ii) appeal against the decree or against the dismissal of an application for re-hearing of the cause, or

(iii) intervention under Rule 38 or 39,

is pending;

(b) that the provisions of Article 11(3) to (5) of the Law do not apply or have been complied with; and

(c) that the provisions of Article 25A(1) of the Law have been complied with and the Court has not given any directions under 25A(2) of the Law. 

4.        In the normal course of events, when six weeks have expired from the date of a decree nisi, a petitioner will apply for his decree absolute.  From paragraph 2 of Rule 41, it is clear that, upon receipt of the application, subject to the provisions of sub-paragraphs 2(a), 2(b) and 2(c), the Greffier "shall" make the decree absolute.  The procedure is prescribed and there does not appear to be any room for manoeuvre. 

5.        The only exceptions to the duty of the Greffier to make the decree absolute, are limited.  Sub-paragraph 2(a)(i) deals with situations where there has been an application for the rescission of the decree or a re-hearing of the cause.  Subparagraph 2(a)(ii) deals with a case where an appeal is pending.  Sub-paragraph 2(a)(iii) deals with a case where there has been an intervention.  No such situation has arisen in this case. 

6.        Sub-paragraph 2(b) deals with applications in respect of special provisions in separation cases.  This is not a separation case. 

7.        Sub-paragraph 2(c) deals with the necessity to for the Court to declare itself satisfied that there are no exceptional circumstances with any children of the family, such as might lead the Court to direct that the decree should not be made absolute until ordered otherwise.  Neither party's advocate is making any such suggestion. 

8.        So, on the face of it, there is no reason to interrupt the progress of the husband's application for a divorce in this case and the wife's application for a delay does not appear to have any merit. 

9.        However, various authorities have been referred to by the advocates acting for the parties, indicating that the Court has a discretion to delay the issue of a decree absolute in appropriate cases.  In particular, Advocate Whittaker for the wife respondent (who is resisting the grant of the decree) refers to the Jersey cases of J-v-H [2004] JRC 081 and R-v-O [2005] JRC 021. 

10.      Both these cases were applications by a respondent to make a decree nisi of divorce absolute.  The Rules are different in these cases and I think both advocates have perhaps deceived themselves into thinking they are the same.  Indeed Advocate Godden refers in paragraphs 3.1 of his skeleton argument to Article 20(3) of the Law as if it refers to applications for a decree absolute by a petitioner.  I have no doubt that the Jersey cases of J-v-H and R-v-O would have been decided differently if it had been the petitioner applying for the decree absolute.  To explain the situation, I need to set out Article 20(3) in full:-

"Where a decree nisi has been obtained and no application has been made by the party who obtained the decree then, at any time after the expiration of three months from the earliest date on which that party could have made such an application, the party against whom the decree nisi has been granted shall be at liberty to apply to the court and the court shall, on such application, have power to make the decree absolute, reverse the decree nisi, require further inquiry or otherwise deal with the case as the court thinks fit." [My emphasis]

11.      In what respect are the rules different?  In the first place, a respondent has to wait three months plus six weeks before applying.  Secondly he has to apply by summons as well as by filing an application.  Thirdly the court has additional power to reverse the decree nisi, require further enquiry or otherwise deal with the case as it thinks fit.  What could be broader than that? 

12.      So J-v-H and R-v-O do not help us in the present case.  This is a case in which the petitioner is about to apply.  The Court does not have the discretion provided by Article 20(3).  Only Article 20(1) and Rule 41 apply. 

13.      Is there any case law in either Jersey or the UK to help the Court in applying Article 20(1) and Rule 41 where a respondent objects to the grant of a decree absolute?  I am unaware of any local precedent, but Jersey Law follows the precedent provided by United Kingdom case law.  The most recent UK authority is the case of Miller-Smith-v-Miller-Smith (No.2) [2009] EWHC 3623 (FAM).  In that case, it was the petitioner ("husband") (as in this case) who was applying for the absolute.  It was the respondent ("wife") (as in this case) who intended to resist.  The Court found:-

"The focus of the wife's concern is that if the decree is made absolute and the husband dies, she will lose financial benefits that she would have enjoyed had they still been married.  It cannot of course be asserted that this necessarily gives her a right to resist the decree absolute.  Financial disadvantage is not a ground for refusing a divorce and the statutory obligation at one stage imposed on a court when considering an application for ancillary relief to strive to put the parties in the position they would have been in had the marriage not broken down has long been abandoned.  If, however, a respondent can establish that she would suffer a financial or other disadvantage if the petitioner dies after the decree absolute for which she could not receive compensation, it is possible that the delay of the decree absolute under the inherent jurisdiction may be ordered.  [My emphasis.] 

Mr Wilson, however, drew my attention to the unreported decision of the Court of Appeal in Dart-v-Dart (27th October 1995) in which Butler-Sloss LJ (as she then was) quoted the passage from Brandon LJ's judgment in England cited above and commented as follows:_

"Consequently, one starts from the proposition that the husband has the right to a decree absolute after the appropriate period from decree nisi, and that period has now elapsed.  In the normal course of events he would be able to make the decree absolute unless the wife is able to show special circumstances to defer it.  At the end of the day it is an exercise of the 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.  It is not a balancing exercise in the ordinary sense."

14.      In the present case the wife respondent has a number of concerns which are set out in her advocate's skeleton argument.  Her application to resolve ancillary matters is at a very preliminary stage.  The formal application has only just been made, despite the grant of a decree nisi having been made on 21^st April, 2010.  The wife's skeleton argument states that there has been no formal financial disclosure.  Neither party has any idea of the possible financial impact of the termination of their spousal status, for example, inheritance, social security entitlements or pension benefits. 

15.      The assets for distribution in this case include a house, presently for sale.  They each have an Aviva pension.  The wife has also a work pension.  Both parties have Skandia multifund shares.  They each have motor vehicles.  It is argued that the wife will lose her widow's entitlement to the husband's pension on divorce and will have to pay her own social security stamp. 

16.      Should the wife's concerns lead to the Court placing a stay on the application for a decree absolute until after the resolution of ancillary matters?  I think not.  The argument that the respondent will lose a potential benefit from the petitioner's pension might prevail under different circumstances, but in this case, the principle asset is the former matrimonial home and there is enough capital to enable the Court to provide a fair settlement, even if she loses her entitlement to share in his pension in the event of his death.  The only necessary safeguard, which it is right for me to impose is an undertaking to be given by the husband to continue, until further order, to make the mortgage payments, to pay other premiums, for instance, with regard to insurance policies and to continue to pay the older child's college fees until ancillary matters have been determined. 

17.      Finally, I would like to express a personal concern about this procedure which enables a petitioner, where the ground of divorce is either adultery or unreasonable behaviour (as opposed to separation grounds) to plough ahead regardless of the feelings of the respondent and apply for a decree absolute after only six weeks, when ancillary matters have not been resolved and possibly re-marry even before litigation over his or her previous marriage is finished.  The only legal protection to the respondent is if he or she can show special circumstances within the principles set out in the Miller-Smith case (above).  No complaint is made of any matrimonial conduct on the part of the husband, the petitioner, in this case.  His case is that the wife has committed adultery, which is not contested.  However, the situation in alternative circumstances may be that the breakdown of a marriage was not caused solely by the respondent's conduct.  The petitioner could be equally or even more to blame.  All that has to be proven by one or other party is a "ground" (i.e. a matrimonial offence by one party) to bring the marriage to an end.  There is no waiting period.  The law does not appear to be a respecter of persons or feelings and might enable an equally guilty spouse to walk away from a marriage in a matter of weeks with apparent contempt for all those left behind.  A "quickie" divorce indeed!

Authorities

Matrimonial Causes (Jersey) Law 1949, as amended.

Matrimonial Causes Rules 2005.

J-v-H [2004] JRC 081.

R-v-O [2005] JRC 021.

Miller-Smith-v-Miller-Smith (No.2) [2009] EWHC 3623 (FAM).