JP v NP

A financial remedy order cannot be made before decree nisi. However, a court may hear and determine contested financial issues before decree nisi and give an indication of the outcome, provided that the consequential order takes effect only on or after decree nisi. FPR 29.15 permits the court to specify a later effective date and applies to both consent and contested proceedings. A fresh appraisal after decree nisi is not ordinarily required. Any order purporting to take effect before decree nisi remains a nullity.

The wife appealed against DDJ Crowther’s decision to set aside a financial remedy order made after a hearing by DDJ Cornwell. At the hearing, decree nisi had not yet been pronounced. DDJ Cornwell gave judgment indicating an equal division of the parties’ modest assets, directed the wife to obtain decree nisi, and ordered that the matter be listed for mention after decree nisi. The consequential financial remedy order was later made and sealed after decree nisi.

DDJ Crowther held that the earlier judgment amounted to an order made without jurisdiction under section 23 of the Matrimonial Causes Act 1973. The central issue was whether the court could give judgment or indicate the outcome before decree nisi while directing that the consequential order should take effect afterwards.

1. Appeal allowed. DDJ Crowther erred in law in treating DDJ Cornwell’s use of the word judgment as necessarily meaning that a financial remedy order had been made before decree nisi.
2. The appeal was governed by the review principles stated in Cordle v Cordle [2001] EWCA Civ 1791, restating the approach in G v G (Minors) (Custody Appeal) [1985] 1 WLR 647. An appeal should succeed where the lower court was wrong, procedurally irregular, or plainly wrong in its evaluation.
3. Section 23 of the Matrimonial Causes Act 1973 provides the jurisdictional basis for financial remedy orders. It prevents an order from taking effect before decree nisi, whether the proceedings are by consent or contested. An order purporting to take effect earlier is a nullity and cannot be saved by the slip rule or inherent jurisdiction, following Munks v Munks [1985] FLR 576 and the relevant holding in Board (Board Intervening) v Checkland [1987] 2 FLR 257.
4. Under FPR 29.15, the court may direct that a judgment or order takes effect on a later date. That rule applies to all family proceedings, including contested financial remedy proceedings. The distinction between consent and contested cases concerns the depth of enquiry, not the timing of the court’s jurisdiction.
5. The Court of Appeal’s reasoning in Pounds v Pounds [1994] 1 WLR 1525 applied beyond consent orders. There is ordinarily no need for a fresh appraisal after decree nisi where the earlier judgment merely indicates the outcome and the consequential order is made afterwards. Exceptional changes, such as serious non-disclosure or circumstances engaging Edgar v Edgar [1980] 1 WLR 1410, can be addressed through the court’s procedural powers.
6. DDJ Cornwell had understood the jurisdictional limit, directed that decree nisi be obtained, and provided for the matter to be listed after its pronouncement. His judgment was an indication of outcome, not an order taking effect before decree nisi. The later order was therefore valid. The husband was ordered to pay the wife’s costs of the appeal and below, subject to assessment if not agreed.

1. High Court (Family Division): appeal from DDJ Crowther allowed. The financial remedy order was reinstated as valid.
2. District Judge: DDJ Crowther had set aside DDJ Cornwell’s order for want of jurisdiction and granted permission to appeal.