Law Articles

When should a final divorce order be delayed? 19/02/2024

The Matrimonial Causes Act 1973 (MCA 1973) is a key piece of legislation in England and Wales that governs divorce and related financial provisions. Section 10(2) - (4) of the MCA 1973, which was not commonly used before April 6, 2022, provides special protection for respondents in divorce proceedings. This protection allows a respondent to apply to the court to consider their financial position after the divorce when a conditional order has been made. The court must not finalise the divorce order unless it is satisfied that the financial provision made by the applicant for the respondent is reasonable, fair, or the best that can be made under the circumstances.

The Divorce Dissolution and Separation Act 2020, which came into force on 6 April 2022, expanded the availability of this special protection to all respondents, except in joint applications for divorce unless one party withdraws. The special protection is not a defence but a right to delay the finalisation of a divorce order to ensure fair financial provision, particularly in cases where a spouse's pension benefits, or other financial entitlements might be affected by the divorce.

Section 10(3A) provides a checklist of factors the court must consider when determining an application under s 10(2) - (3), which overlaps with the considerations under MCA 1973, s 25(2). However, s 10(2) - (4) does not confer any additional rights or entitlements to financial relief beyond what can be obtained under MCA 1973, ss 23 -24; it merely allows for a delay in finalising the divorce order.

The use of s 10(2) - (4) should be carefully considered, as it can lead to an adverse order for costs if it adds nothing to a mainstream financial remedy application. The court will decline to use its powers under s 10(2) - (4) if financial provision can be conveniently and appropriately dealt with under an ordinary application for a financial remedy. Historically, the majority of reported cases under this section relate to the anticipated loss of a spouse's pension benefits upon divorce.

In summary, s 10(2 - (4) of the MCA 1973 offers a mechanism for respondents in divorce proceedings to ensure that their financial needs are considered before a divorce is finalised. Its use has been revitalised by the Divorce Dissolution and Separation Act 2020, and it should be applied judiciously to avoid unnecessary costs and to address specific financial concerns that may arise from the dissolution of a marriage or civil partnership.

The process for making an application under Section 10(2) - (4) of the Matrimonial Causes Act 1973 involves the following key steps and considerations, once a conditional order has been made:                             

1. Eligibility: This protection is available to all respondents in divorce proceedings, except in joint applications for divorce unless one of the parties has withdrawn from the application. 
2. Application Timing: The application can only be made after a conditional order of divorce has been issued. It is not available before this stage. 
3. Nature of Protection: The court must be satisfied either that the applicant should not be required to make any financial provision for the respondent, or that the financial provision made by the applicant for the respondent is reasonable and fair or the best that can be made in the circumstances. 
4. Conditional Order Finalisation: Despite Section 10(3), the conditional order of divorce can be made final if there are circumstances making it desirable that the order should be made final without delay and the court has obtained from the applicant a satisfactory undertaking to make such financial provision for the respondent as the court may approve. This undertaking should contain specific proposals. 
5. Court Considerations: Section 10(3A) provides a checklist of factors the court must consider when determining an application under Section 10(2) - (3), which overlaps with considerations under MCA 1973, Section 25(2). 
6. Avoiding Unnecessary Applications: The court will decline to use its powers under Section 10(2) - 4) if financial provision can be conveniently and appropriately dealt with under an ordinary application for a financial remedy. It is advisable to carefully consider the use of Section 10(2) - (4) to avoid an adverse order for costs if it adds nothing to a mainstream financial remedy application.                                                                                                                                                                           

This process is designed to ensure that respondents can have their financial needs considered and addressed before the finalisation of a divorce, particularly in cases where their financial entitlements, such as pension benefits, might be affected by the divorce.

For further information and advice on this issue, and other family law issues, please contact us for a free initial consultation on 01992 306 616 or 0207 956 2740 or email us.