The final stage of a divorce is to make the application for the decree absolute which legally dissolves the marriage. It effects an important change of status and is sometimes termed as ‘good against the world’. Accordingly, everyone is entitled to rely on it as establishing that the parties are no longer married. It has consequences in respect of inheritance rights and tax. It also allows a party to remarry. All of these are significant issues if the financial aspects of your marriage have not yet been finalised.
The risk of financial prejudice
The main risk for the financially weaker party is that they will suffer financial prejudice if the marriage is legally dissolved before a financial settlement has been concluded. For example, if a spouse were to die after the decree absolute has been made, the other party would lose valuable pension benefits that they would otherwise have received as the widow or widower of the deceased. A party’s marital status could also affect the occupation of a property solely owned by the other spouse.
Relevant cases in the UK
Recently a UK divorce case hit the headlines that made family lawyers and their clients shudder. A law firm had divorced the wrong couple by mistake, using the online divorce portal operated by HM Courts and Tribunals Service without the authority of their client, the wife. When the firm realised the mistake, they made an application to rescind the decree absolute (called a final divorce order in the UK), but the application was rejected by the President of the Family Division, Sir Andrew McFarlane. In the judgment Williams v Williams [2014] EWHC 733 (Fam), the President explained:
“On the 3 October 2023 the online divorce portal operated by HM Courts and Tribunals Service issued a final order of divorce in proceedings between Mrs Williams, the applicant wife, and Mr Williams, the respondent husband. The solicitors acting for the applicant, who had used the online divorce portal to apply for the final order, did so without the instruction or authority of their client, Mrs Williams. The solicitors have explained that the member of staff involved had intended to apply for a final order of divorce for another client, in a different divorce case, but inadvertently opened the electronic case file in ‘Williams v Williams’ and proceeded to apply for a final order in that case”.
The President dismissed the application, saying that there was no authority for setting aside a decree absolute in these circumstances. He also said:
“Further, I accept [Counsel for the husband’s] submission that the court should be very slow to open up a potential third stage in divorce proceedings where, post-final order, a party can come back and say that the application for the order was made by mistake. As the authorities make clear, a final order made without procedural irregularity should stand for all the world.”
Thankfully, the situation befalling Mr and Mrs Williams could not happen in Hong Kong because we do not have an online portal and an application for the decree absolute to dissolve the marriage must be made by submitting a form to the Family Court. But the case raises the issue of what happens if one spouse wants to apply for the decree absolute before the financial arrangements have been finalised.
Court cases in Hong Kong
There are several Hong Kong cases which address the issue of the timing of the decree absolute.
In J v V [2012] HCMC 3/2012 the husband’s application for the decree absolute was granted because the wife had failed to establish any special or exceptional circumstances to satisfy the Court that the husband’s application should be refused. The background was that the parties had reached an agreement in mediation which had been made into a Court Order however issues had arisen in respect of the implementation of their agreement.
His Honour Poon J stated that the Court has the unfettered power whether to make the decree absolute. As a matter of public policy, a marriage which had irretrievably broken down should be brought to an end formally within a reasonable time so that, with finality achieved, the parties can leave the failed relationship behind, move on with their life and to remarry if they so wish.
Therefore, a spouse opposing the application for the decree absolute to be made has to satisfy the Court that it is just in the circumstances of the particular case to exercise the discretion to refuse the application and it cannot be used as a bargaining position to gain a better financial outcome. The opposing spouse must establish some special or exceptional circumstances to satisfy the Court that it is just to refuse the application. What constitute special or exceptional circumstances will depend on the circumstances of the case. Even when prejudice is established, it is not necessarily conclusive, because the other spouse might also be prejudiced by the Court not making the decree absolute. The Court must balance the prejudice to each party when exercising its discretion.
By contrast, in the big money case of M-D, MP v M,MGA [2022] HKFC 33, His Honour Judge G Own refused the application of the husband for the decree absolute due to financial prejudice that the wife and children might suffer as a result. The husband was in a new relationship and his partner was pregnant. He asserted that he was concerned about the stigma and discrimination of being unmarried to the mother of his child and had concerns over his legal rights as the father of an illegitimate child.
The wife had care and control of the children of the family and the financial arrangements for them had not been agreed. Moreover, the husband had not provided any undertakings to maintain the children pending a financial settlement. The wife’s objections to granting the decree absolute were threefold, namely:
(1) the husband would lose the incentive to participate in the ancillary relief proceedings,
(2) in the unfortunate event that the husband were to die before the ancillary relief proceedings were concluded she would be left with no alternative but to apply for inheritance under the statutory provisions which would be impacted by the husband living outside of Hong Kong and
(3) she would be barred from applying for maintenance pending suit/ litigation funding.
The Judge stated that “The best interests of the children have always been of paramount importance which, in my view, should not give way to their parents’ personal wishes or aspirations”.
We can conclude by saying that whether to apply for the decree absolute before the financial arrangements have been determined will be considered on a case-by-case basis.
The article was originally published on Hong Kong Lawyer
