Rezai-Namaghi v Atapour (Decree Nisi: Formalities) [2020] EWHC 3729 (Fam)
The partes married in 2011 and separated in 2016. In August 2016 H issued a divorce petition and in October 2016 W issued her application for financial remedy orders by means of a Form A. The case continued through the normal hearings to a final hearing and at all stages the parties reminded the court there had not been a decree nisi. The case was lited for a 2 day hearing on the 24th and 25th January 2018. On the first day it was pointed out to the court there was still no decree nisi. At the start of the of the second day of the hearing before the deputy district judge she stated (according to the transcript) “I am sorry I am late..…but I can say that I have dealt with the issue of decree nisi at this point” [8]. This clearly gave the parties grounds to believe there had been a decree, indeed in her judgment the DDJ reaffirmed “the decree nisi was pronounced by me on day 1 of the trial” [12].
In fact the hearing took 4 days finishing on the 8th October 2018 when judgment was reserved. Due to illness and other complexities arising, including the DDJ being given a full time appointment on another circuit, judgment was circulated in draft on 18th March 2019. In the draft the DDJ stated “The decree nisi was pronounced by me on day 1 of the trial, given that this had not previously been attended to, and without which this court would not have jurisdiction to hear this case.” The parties were in agreement the decree nisi was not made on the 24th January 2018. It was not until 10th June 2019, some 18 months after the hearing began, that the judgment of the district judge was perfected and handed down and a financial remedy order was made on that day.
On 17th April 2020 Recorder Salter delivered a reserved judgment on 3 applications by both parties to the divorce. Namely, an application by the husband (H) for a stay of execution against the financial remedy order, an application by H to vary the periodical payments contained in said order, and an application by the wife (W) for a declaration that a decree nisi was granted on 25 January 2018. This last question was central to the proceedings and as the Recorded found that no such decree nisi was pronounced on that date accordingly the financial order was a nullity. Thus H’s applications were redundant. The appeal in question therefore turned on whether decree nisi had in fact been pronounced on 25 January 2018.
This appeal came before Cohen J on 22nd October 2020 who found there were a number of procedural hiccoughs:
(1) the judge did, it is now clear, sign a certificate of entitlement on 25 January, very probably just before going into court;
(2) what the judge said was that the matter, the issue, had been “dealt with.” She did not say that the decree nisi had been pronounced;
(3) no notice of the decree hearing had been given to either party;
(4) no determination had been made as to whether or not the decree should not be pronounced in public in the usual way and I mention this only because it is plain that what happened if a decree was pronounced was that it happened in private;
(5) there was no listing of the decree nisi;
(6) there is no tape on which a decree nisi can be heard to be pronounced;
(7) there is no record of the decree nisi anywhere on the file either that it be listed or heard or pronounced;
(8) no decree nisi was ever sent to the parties.
Cohen J stated while it was possible to adjust or abridge formalities by judicial decision, they could not simply be overlooked [26]. He found it remarkable that neither party had questioned the lack of such a certificate and procedural steps thereafter [27]. He added it was “deeply unfortunate” that the parties had between them spent in excess of £100,000 over 4 years. He made it clear that absent a fundamental change of circumstances or a clear error by the judge a like order would be made by the court and possibly at an abbreviated hearing. He recognised “that it is deeply unsatisfactory for the parties, four years after financial remedy proceedings were commenced, not to have a final order but, in my judgment, that is where they are.”[40]
The full judgment can be accessed here.
