S v S (Rescission of Decree Nisi: Pension Sharing Provision)
| Jurisdiction | England & Wales |
| Judgment Date | 2002 |
| Date | 2002 |
| Year | 2002 |
| Court | High Court |
Divorce – Decree nisi – Financial agreement – Inclusion of terms in decree – Pension sharing – Agreement between husband and wife to incorporate pension sharing when legislation allowing – Wife applying to rescind decree nisi after introduction of legislation to give effect to agreement – Whether application should be allowed – Whether legislation should be given retrospective effect – Welfare Reform and Pensions Act 1999, s 85(2).
The petitioner wife and the respondent husband had been married for 27 years and had three adult children. In 1999 a decree nisi was pronounced in respect of the marriage. Prior to that decree nisi the parties had come to an agreement on financial terms with the benefit of legal advice. The memorandum to that written agreement provided that ‘as soon as possible upon the grant of a decree nisi of divorce they will apply for a consent order to incorporate the agreement.’ It was agreed that the wife was entitled to one third of the value of the husband’s pension scheme as valued at the date of the separation. However, since the wife required a pension splitting order, that part of the agreement was not included in the consent order, but was to be deferred until the legislation allowed such an order to be made. The agreement provided for a clean break outcome, if it could be achieved. In December 2000 the Welfare Reform and Pensions Act 1999 was brought into effect and introduced pension sharing to help facilitate a fair settlement of financial issues arising upon divorce or nullity. Section 85(2)(a) of the 1999 Act provided that a pension sharing order could not be made under s 24B of the Matrimonial Causes Act 1973 if the proceedings in which the decree had been granted had begun before December 2000. Over two and a half years after its pronouncement, the wife applied to rescind the decree nisi in order that the pension sharing agreement could form part of the consent order. The application was supported by her husband. The powers to rescind the decree nisi were statutorily expressed in ss 9 and 10 of the 1973 Act and the Family Proceedings Rules 1991.
Held – On the proper construction of s 85(2)(a) of the Welfare Reform and Pensions Act 1999, Parliament had, by enacting that limiting provision, clearly intended that former spouses whose marriages had been dissolved in proceedings commenced before December 2000 should not be vulnerable to a pension sharing application, and thus should avoid fresh scope for contested litigation. However, in the instant case, the husband did not resist the application but rather wished to secure an order. The court accepted that there was no statutory provision expressly referring to a power to rescind the decree
nisi in the circumstances of the instant case. However, the court’s ability to control proceedings implied and justified the need to bring them to an end. Where a decree nisi had been pronounced but, for whatever reason, it was clear that no application to make it absolute was likely to be made, then if the matter was brought to its attention the court had the ability to and should mitigate any stalemate which then arose. Every such decision involved the exercise of discretion, although the fact that both parties sought the same outcome should be a potent, but not necessarily overwhelming factor. In the instant case, no public interest would be offended by the rescission of the decree nisi in order to enable the parties to take advantage of the pension sharing opportunity with which legislative amendment had presented them. Furthermore, it would be contrary to public policy to preclude the parties from consensually arranging their affairs to the best advantage in the matter. In the sphere of family law the courts had a long tradition of assisting rather than preventing litigants from achieving legitimate financial advantage. Accordingly, the court had jurisdiction to set aside the decree nisi in the instant case, and in comparable cases, where the application was made with the consent of the spouses, and there was no cogent legal argument to the contrary.
Chaterjee v Chaterjee [1976] Fam 199 and Sherdley v Sherdley[1987] 1 FCR 149 applied.
Cases referred to in judgmentBiggs v Biggs [1977] Fam 1, [1977] 1 All ER 20, [1976] 2 WLR 942.
Chaterjee v Chaterjee [1976] Fam 199, [1976] 1 All ER 719, [1976] 2 WLR 397.
Davies v Davies [1956] P 212, [1955] 3 All ER 588, [1955] 3 WLR 840.
Densley v Densley (1964) 108 Sol Jo 159.
Griffiths v Griffiths (1912) 106 LT 646.
Hulse v Hulse (1871) LR 2 P & D 259.
Jeffrey v Jeffrey [1951] P 32.
O v O (jurisdiction: Jewish divorce) [2000] 2 FLR 147.
Rutter v Rutter (No 2) [1921] P 421.
Savage v Savage [1982] Fam 100, [1982] 3 All ER 49, [1982] 3 WLR 418, (1982) 4 FLR 126.
Sherdley v Sherdley[1987] 1 FCR 149, [1988] AC 213, [1987] 2 All ER 54, [1987] 2 WLR 1071.
Walker v Walker [1987] 1 FLR 31, CA.
Wickler v Wickler[1998] 2 FCR 304, [1998] 2 FLR 326.
ApplicationFollowing the enactment of the Welfare Reform and Pensions Act 1999, the petitioner wife, applied to the court to set aside a decree nisi pronounced on 28 April 1999 in respect of her marriage to the respondent husband. The facts are set out in the judgment.
Douglas Harrison (of Grahame Stowe Bateson) for the petitioner.
The respondent did not appear and was not represented.
Andrew Moylan QC (instructed by the Queen's Proctor) for the Attorney General.
SINGER J.[1] If this open court judgment is reported it should preferably be in anonymised form, and I suggest for consistency that it be referred to as S v S (rescission of decree nisi: pension sharing provision).
[2] The wife petitioner (W) has made an application to rescind a decree nisi pronounced as long ago as 28 April 1999, which has however never been made absolute. The respondent, her husband (H), supports her application but has otherwise taken no part in the application. Its purpose is to clear the way for fresh divorce proceedings in the context of which a pension sharing order may form part of the consent order which in due course both spouses will invite the court to make to give effect to an agreement in compromise of the ancillary relief issues arising upon their separation and divorce. It is noteworthy (but not critical to the determination at which I have arrived) that their agreement provides for a ‘clean break’ outcome, if it can be achieved.
[3] The reason why the parties wish to adopt so apparently circuitous a procedure is transparent. The wife’s petition was issued in December 1998. It contained no prayer for ancillary relief by way of a pension sharing order for the very good reason that there was no jurisdiction to make such an order until, on 1 December 2000, the relevant amendments to the Matrimonial Causes Act 1973 wrought by the Welfare Reform and Pensions Act 1999 took effect. But as a result of the 1999 Act, s 85(3)(a) and of para 2(e) of the Welfare Reform and Pensions Act 1999 (Commencement No 5) Order 2000, SI 2000/1116 the new form of relief is not available in proceedings commenced before that date, as were these.
[4] In this case (although not in every such) such a once-and-for-all result would be entirely consistent with the public policy considerations which led Parliament to amend the 1973 Act (from 12 October 1984, pursuant to the provisions of the Matrimonial and Family Proceedings Act 1984) to add an additional s 25A (and other provisions designed to the same end) to impose upon courts a duty to consider whether a clean break order would in each case be appropriate. But there is also a further and relevant public policy consideration which it seems to me is material. Adult parties of sound mind, and hopefully with sound advice where it is appropriate to seek it, should be given the opportunity to regulate their affairs upon divorce without undue court involvement or interference. That second principle, thus broadly stated, cannot be universally applied in the context of a jurisdiction which requires the court to approve adult agreements, and empowers the court to decline to give effect to them. That notwithstanding, and subject always to the first consideration that must be given to the welfare while minor of any child of the family, and to cases where dismissal of a spouse’s maintenance claims is involved, courts should in my view aim to limit rather than expand the scope of their investigation and any interference.
[5] This application therefore squarely raises...
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