K v. K (Financial Remedy Final Order prior Decree Nisi) [2016] EWFC 23

28 March 2016

Consideration of the validity of a financial remedies order made by the court prior to Decree Nisi being granted

Facts

  • A final order was made in financial remedies proceedings prior to the grant of decree nisi. Both the judge and W’s legal team were unaware of this at
    Final Hearing. H had appeared in person.
  • W applied to enforce the final order made by DJ Heppell. H applied for permission to appeal that order.

Held

  • Cobb J noted s23 MCA 1973 only permits financial remedies orders to be made after Decree Nisi has been granted.
  • W sought to rely on FPR r.29.15 2010, claiming this gives the court power to specify a later date from which an order shall have effect.
  •  Cobb J considered Eleanor King J’s (as she was) decision in NP v. JP [2014] EWHC 1101 (Fam). Eleanor King J had been clear that the validity of such an order depended upon whether the order was: (i) a final determination effective form the time of judgment, or (ii) an indication of outcome that would require a consequential order to be drafted at a later date.
  • DJ Heppell’s order was found to be a final determination purportedly taking immediate effect upon judgment. As this was prior to decree nisi the order was a nullity and could not be saved by FPR r.29.15 2010.
  • Whilst it was considered regrettable and disproportionate, the case had to be remitted to a District Judge for re-hearing.

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