In K v K (Financial Remedy Final Order prior to Decree Nisi) 2016 EWFC 23, Cobb J remitted a case for rehearing on the basis that the trial judge had made an order prior to the grant of decree nisi of divorce. The case provides a salutary warning for lawyers about the limits of the Family Court’s powers to correct what was an innocent and – at first glance - merely procedural mistake.

After 17 years of marriage, the parties – both then in their 60s – separated when Mrs K left the matrimonial home. Mr K petitioned for divorce and applied for ancillary relief. At the final hearing, he acted in person whereas the wife was legally represented. District Judge Heppell, sitting in Leeds on 3 December 2015, preferred the wife’s evidence and ordered Mr K to pay £15,000 of her costs by reason of his litigation conduct. He ordered the matrimonial home to be sold “forthwith” with 60% of the proceeds going to Mrs K and resolved issues concerning access to the property and ownership of the contents with directions requiring action within a few days of the hearing.

So far, so unremarkable. But when Mrs K’s solicitors came to try to enforce the order, they discovered that decree nisi had neither been applied for nor granted. Both her application to enforce and Mr K’s request for permission to appeal were then entirely overtaken by the question of the validity of the order.

The well-known opening words of s23 of the Matrimonial Causes Act 1973 provide that the court’s powers may be exercised upon the “granting of a decree of divorce … or at any time thereafter”. Before Cobb J, the wife’s lawyers relied upon rule 29.15 of the Family Proceedings Rules 2010 which provides that “a judgment or order takes effect from the day when it is given or made, or such later date as the court may specify”. It was argued that the order’s inclusion of the words “with effect from decree Absolute” amounted to the specification of a later date.

The problem with that argument was that it flew in the face of the timing of the substance of the orders made. How could the order be said to take effect only upon decree absolute when the parties were being directed to take specific steps before (as it transpired) there was even a decree nisi in place?

The court was referred to other cases in which final orders had been decided prior to the grant of any decree. These provided clear authority that such an error could not be corrected under the slip rule (Munks v Munks 1985 FLR 576) or the court’s inherent jurisdiction (Board (Board Intervening) v Checkland 1987 2 FLR 257). But in some cases, pre-decree decisions had been saved by the wording of the orders made. For example, in McCartney v Mills McCartney 2008 EWHC 401, Heather Mills’ lump sum was ordered to be paid ‘on or after grant of decree nisi’. Furthermore, in NP v JP 2014 EWHC 1101 (Fam), the order included listing the case for a mention upon decree nisi being pronounced.

On appeal against the setting aside of the order made in NP v JP, Eleanor King J drew a distinction between a judgment or consent order “taking effect from the moment of judgment” (or agreement) and “an indication of outcome with the consequential order to be drawn and made at a later date” and held that “if the court purports to make an order or provides for a judgment to take effect prior to decree nisi, the resulting order will be a nullity and cannot be saved by r29.15”.

Unfortunately for Mrs K, that was exactly what DJ Heppell’s judgment purported to do and, consequently, his order could not stand. Cobb J accepted that a retrial was disproportionate, frustrating for the wife and in many ways contrary to the overriding objective. The clear authority of NP v JP meant that it was also entirely unavoidable and Cobb J remitted the case for a hearing before a different district judge.

In K v K itself, the issues had narrowed since the final hearing because Mr K was no longer resisting a sale of the matrimonial home. That will have been little comfort to the wife, who faced a further period of delay and the expense of a second - albeit potentially more limited - trial on top of the costs of the appeal itself.

As he was acting in person, Mr K could hardly be blamed for failing to grasp the significance of there being no decree. It is more difficult to understand why neither the wife’s lawyers nor DJ Heppell himself spotted the problem.

The moral of the story is clear: check that there is a decree nisi before finalising any order or agreement. In the event of there being even the slightest question mark, list the case for a mention or delay implementation so as to allow time for the position to be ascertained beyond doubt.