Introduction

JP v NP [2014] EWHC 1101 (Fam) considered whether the court has jurisdiction to give judgment within contested financial remedy proceedings prior to pronouncement of Decree Nisi. This is an important clarification of procedure for practitioners.

The jurisdictional basis for a court to make an order within financial remedy proceedings derives from s.23 Matrimonial Causes Act 1973. This states that orders cannot be made until on or after Decree Nisi. The question for the High Court to consider in JP v NP was whether there was jurisdiction to give a judgment within contested proceedings prior to Decree Nisi and to provide for a consequential order to be made after Decree Nisi.

Facts

In JP v NP Decree Nisi had not been pronounced prior to DDJ Cornwell giving judgment in 2011, following contested proceedings, that the assets should be divided equally between the parties. A costs order was made against the husband in favour of the wife. Decree Nisi was subsequently pronounced in May 2012 and a financial remedy order was made in the terms of DDJ Cornwell’s judgment.

The husband successfully applied to set aside the costs order on the basis that DDJ Cornwell had no jurisdiction to make such an order in the absence of Decree Nisi. The husband then proceeded to make a further application to set aside the whole of the financial remedy order. DDJ Crowther duly set aside the order on 7th November 2013 for want of jurisdiction. The wife appealed.

Relevant Law

In giving her judgment Mrs Justice King DBE gave a brief overview of the law on the issue of jurisdiction prior to pronouncement of Decree Nisi. In Munks v Munks [1985] FLR 576 the Court of Appeal held that the court had no jurisdiction to make an order prior to pronouncement of Decree Nisi, and if an order were made this could not be saved by relying on inherent jurisdiction or by trying to amend the date of the order to past-date the Decree Nisi under the slip  rule. This decision was supported by the Court of Appeal in Board (Board Intervening) v Checkland [1987] 2 FLR 257 when May LJ observed that operation of the slip rule or use of the inherent jurisdiction cannot breathe life into an order which the judge has no jurisdiction to make in the first place.

In Pounds v Pounds [1994] 1 WLR 1525  Singer J held that the registrar had no jurisdiction prior to Decree Nisi to direct that a consent order should be made on a date subsequent to Decree Nisi.  When the matter went before the Court of Appeal it was held that the registrar had the power to approve a draft consent order prior to Decree Nisi, with a direction that it should take effect on a later date. This power came under RSC, Ord.42 r.3, this provision being subsequently replaced, prior to DDJ Cornwell’s judgment, by FPR 2010 r.29.15:

A judgment or order takes effect from the day when it is given or made, or such later date as the court may specify

Judgment

Mrs Justice King DBE concluded that r.29.15 specifically refers to a “judgment”, implying that contested proceedings are covered by the rule just as much as orders drawn up by consent, allowing a judge to reach a judgment that would take effect at a later specified time. Consequently DDJ Cornwell did have the power to direct that his judgment should take effect from such later date as he might specify.

This still left the question of how DDJ Cornwell could have jurisdiction prior to Decree Nisi to give a judgment in light of s.23 of the Matrimonial Causes Act 1973. It was argued on behalf of the husband that there is a distinct difference between a consent order as considered in Pounds v Pounds and an judgment made within contested proceedings. A consent order is protected by s33A  Matrimonial Causes Act 1973, requiring the court only to make a broad appraisal of the parties’ assets, and this can be done prior to Decree Nisi. It was argued that if the division of assets was decided following opposed proceedings this would be a determination of proceedings and would result in the court falling foul of s.23 MCA 1973.

Mrs Justice King was not persuaded by this argument, concluding that a judgment is not synonymous with a determination. A determination would take effect from the moment of judgment and the court has no jurisdiction to make an order that would take effect prior to Decree Nisi. A judgment however can be an indication of an outcome that will take effect at a later date. Such a judgment, the judge concluded, does not fall foul of s.23 MCA 1973 if that later date would come after Decree Nisi.

Conclusion

The High Court has determined that a court does have jurisdiction prior to Decree Nisi to give a judgment that is an indication of the outcome of proceedings and to provide for a consequential order that is to be made after Decree Nisi pursuant to r.29.15. The court would fall foul of s.23 MCA 1973 were it to make an order that would take effect prior to Decree Nisi. Such an order would be a nullity and could not have validity conferred on it retrospectively.