Divorce is the process by which an opposite-sex or a same-sex marriage may be terminated. The divorce process is in two stages. The decree nisi is the first stage: the marriage will be terminated in due course unless (nisi) in the meantime the parties become reconciled. It is the decree absolute...
Divorce (Part 3)
Applicatoo to rescioᑜ the Decree Nisi
Section 10(1)i MCA 19i73: where a decree nisi has been granted on a petton based
on 2 years’ separaton with consent the court may
….at any tme before the decree absolute is made, rescind the decree if it is satssed
that the petitioner misled the respondent (whether intentonaaay or unintentonaaayy
about any mater which the respondent took into account in deciding to give his
consent.
Section 10(1)i onay appaies to the fact of 2 years’ separaton with consent.
The pettoner misled the respondent e.g. misaead about snanciaa provision.
A change of heart is not enough-must have been seriousay misaed.
An appaicaton under Section 10(1)i must be made between decree nisi and decree
absolute - 6-week window to appay.
Ao applicatoo to postpooe the ᑜecree absolute
Section10(2)i, (3)i and ())i MCA 19i73 aaaows the respondent to make an appaicaton to
have the decree absoaute postponed if proper financial arrangements have not
been made for the respondent.
Onay appaies to 2 or 5 years’ separation.
Unaike Secton , Section 10(2)i is not a defence. It can onay postpone the decree
absoaute from being granted.
Section 10(2)i enabaes the respondent to ask the court to consider their financial
position as it wouad be once the marriage has ended.
The Respondent can reay on these provisions despite the fact that they have aaready
consented to the divorce.
What matters must the court coosiᑜer io assessior the foaocial positoo of the
Respooᑜeot afer the ᑜivorce?
Section 10(3y: ‘shaaa consider all the circumstances of the case incauding the age,
health, conduct, earning capacity, financial resources, and financial obligations of
each of the parties.’
The snanciaa positon of the respondent as it wouad be on divorce ANdD
The snanciaa positon of the respondent on the death of the pettoner, shouad they
die srst.
The court SHALL NdOT make the decree absoaute unaess it is satssed that:
ay The pettoner should not be required to make any snanciaa provision for the
respondent, or
by That the snanciaa provision made for the respondent is reasonable and fair
or the best that can be made in the circumstances.
E.g. Garcia v Garcia [1992] 1FLR 2 6 - decree absoaute deaayed as husband owed
substantaa sums in chiad maintenance.
The court wiaa postpone the decree absolute unta Section 10(3)i has been met.
The court DOES NdOT have powers under Secton 10 to make snanciaa orders.
The respondent couad make an application for financial relief or negotiate with the
pettoner.
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