All family practitioners are aware that the court has no power to make an order in financial proceedings without decree nisi being pronounced in the divorce. Where spouses represent themselves without any legal assistance, it is important that they are aware of the court’s parameters and this is highlighted by the recent case of K v K (Financial remedy final order prior to decree nisi) . The husband was unrepresented in the financial proceedings and at the time of the court making the financial order, decree nisi had not yet been pronounced.
In this case, the judge ordered a sale of the family home “forthwith” in the financial order. The husband subsequently applied for decree nisi which was granted. The wife sought to enforce the financial order on the basis that although decree nisi had not been pronounced at the time of the making of the financial order, the court could specify when the order was to take effect.
In the enforcement application the judge came to the conclusion that the original financial order was a nullity and therefore unenforceable. The conclusion stemmed from a number of reasons:-
- That the order was made with all the parties being under the impression that decree nisi had already been pronounced
- That the husband was not aware of the significance of decree nisi being granted
- That the order included various provisions which required actions by a specified time frame and both parties action in reliance of the terms
The above case highlights the importance of ensuring that where one party is unrepresented, the represented party checks that all relevant and correct steps have been taken in both divorce and financial proceedings. The failure to do so could lead to significant costs being incurred in rectifying the error or omissions.
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