Miller-Smith v Miller-Smith (No 2)

The High Court has an inherent jurisdiction to delay or stay the making absolute of a decree nisi, but only where the respondent establishes special or exceptional circumstances. Financial disadvantage following the petitioner’s death may justify delay only where it cannot adequately be compensated. The court must assess the protection available through undertakings, the resources available to meet a claim, and the practical consequences of delay. Substantial assets, an undertaking concerning pension benefits and replacement health insurance may make the risk of uncompensated disadvantage minimal. The jurisdiction is discretionary and weighs the petitioner’s entitlement to a decree absolute heavily against the circumstances relied upon.

The wife applied for an order preventing the husband from making absolute a decree nisi until determination of her ancillary relief claims. She feared losing pension and health insurance benefits if the husband died after the decree absolute. The husband offered undertakings concerning equivalent pension benefits and similar health insurance cover.

The application followed defended divorce proceedings and earlier litigation concerning the sale of the former matrimonial home. The central issues were whether the court had jurisdiction to delay the decree absolute and, if so, whether the circumstances justified exercising that jurisdiction.

1. Jurisdiction. The application was refused. Following England v England (1980) 10 Family Law 86 and Dart v Dart (unreported, 27th October 1995), the court held that the High Court has an inherent jurisdiction to delay or stay an application to make a decree absolute. That jurisdiction is confined to cases in which special or exceptional circumstances are established.
2. The statutory provisions in the Matrimonial Causes Act 1973, including sections 9, 10 and 10A, identify particular statutory circumstances in which a decree absolute may be delayed. They do not exclude the inherent jurisdiction recognised by the Court of Appeal.
3. Financial disadvantage resulting from the petitioner’s death after decree absolute does not automatically justify delay. Delay may be appropriate where the respondent would suffer financial or other disadvantage for which compensation could not be obtained. The court should consider whether undertakings adequately protect the respondent and whether the petitioner’s estate would provide sufficient resources to meet any reasonable claim.
4. The husband’s undertaking required him to obtain similar health insurance cover for the wife and to nominate her for pension benefits equivalent to those payable to a legal spouse. It was to remain in force until conclusion of the ancillary relief proceedings or further order. Further information from the pension trustees would not improve the undertaking or demonstrate a real risk of refusal.
5. The wife would retain substantial resources and could pursue claims against the husband’s estate under the Inheritance Act 1975 if necessary. The comparatively short marriage, her earning capacity and the parties’ relative contributions were also relevant. Any additional cost and anxiety of such proceedings did not materially exceed those of a contested ancillary relief claim. The risk of uncompensated loss was therefore minimal and insufficient to deny the husband his decree absolute.
6. The application for a stay was refused, subject to the undertakings. The wife was ordered to pay the husband’s costs on the standard basis. Permission to appeal and a stay pending appeal were refused.

The judgment records that the Court of Appeal had dismissed the wife’s appeal concerning the sale of the former matrimonial home before this application was heard. This application was determined at first instance in the High Court, Family Division.