With the introduction of no-fault divorce in England and Wales in April 2022, divorces are now designed to proceed more smoothly, without the need for blame. However, what happens when one party wants to delay finalising a divorce because of financial concerns? Here’s a breakdown of the legal framework, key cases, and practical implications for delaying a divorce under the Matrimonial Causes Act 1973.
When Can a Divorce Be Delayed?
Under the Matrimonial Causes Act 1973, two key provisions allow for delaying a divorce to avoid financial prejudice:
- Section 9(2):
- A divorce can be delayed if finalising it would result in significant financial harm to one party. For example, this might happen if the spouse would lose access to spousal death benefits, insurance, or pensions tied to the marital status.
- The applicant must provide clear evidence of tangible financial prejudice.
- Section 10(2):
- This protects the financially weaker spouse by allowing a delay if reasonable financial provision has not been made. The aim is to prevent one party from being left vulnerable or disadvantaged by a prematurely finalised divorce.
How Courts Decide: Lessons from Thakkur v Thakkur [2023]
The case of Thakkur v Thakkur [2023] EWCA Civ 874 is a leading authority on the application of Sections 9(2) and 10(2). In this case, the wife argued for a delay, claiming she would lose access to spousal pension rights if the divorce was finalised before financial remedies were resolved.
The Court of Appeal’s decision clarified several important points:
- Substantial Evidence Required: A claim of financial prejudice must be backed by robust evidence, such as actuarial reports or valuations. General assertions won’t suffice.
- Proportionality: Delays should only be granted if proportionate to the financial harm demonstrated.
- Public Policy: The no-fault divorce system emphasises efficiency, and courts are wary of delays that undermine this principle.
In Thakkur, the court ultimately found that the wife’s claims lacked sufficient evidence, highlighting the need for meticulous preparation in such applications.
How to Apply for a Delay
If you believe financial prejudice justifies delaying a divorce:
- File an Application: Use Form D11 to apply to the court, citing the relevant statutory provision (Section 9(2) or 10(2)).
- Provide Evidence: Include supporting documentation, such as financial reports, pension valuations, or expert testimony.
- Prepare for Scrutiny: Courts will closely scrutinise the claim to ensure the delay is warranted and proportionate.
Who Benefits from These Provisions?
One of the key takeaways from recent case law is that these protections apply equally to modest and high-net-worth cases. Financial prejudice is evaluated based on its relative impact, not the size of the financial estate. This ensures fairness across the board, protecting vulnerable parties regardless of their financial circumstances.
Practical Advice for Navigating Delays
- Act Promptly: Ensure that financial remedy applications are pursued alongside the divorce to minimise potential conflicts.
- Build Your Case: If you anticipate financial prejudice, gather detailed evidence early, as courts demand specificity.
- Seek Legal Guidance: Applications to delay a divorce require careful legal analysis and strategic planning.
Conclusion
While the no-fault divorce system aims to streamline the process, it recognises that financial fairness must be preserved. By providing mechanisms to delay a divorce under Sections 9(2) and 10(2), the law offers protection to those who might suffer financial harm. However, as Thakkur v Thakkur demonstrates, courts approach these applications with a critical eye, requiring robust evidence and proportionality.
Whether you are navigating modest assets or complex finances, ensuring that your rights are protected requires a strategic and evidence-based approach. For more information or assistance, contact James Thornton who can guide you through the process.
