Thakkar v Thakkar

Under section 9(2) of the Matrimonial Causes Act 1973, the court may defer decree absolute where special circumstances justify doing so. The ordinary entitlement to decree absolute creates a strong presumption in favour of granting it, but the inquiry is not an ordinary balancing exercise. The applicant need not establish the exact prejudice that divorce would cause at an interim stage. Complex offshore trusts, foundations, bearer shares or other structures may constitute special circumstances where marital status could materially affect the determination or enforcement of financial remedy orders. The court may therefore defer decree absolute while disputed financial circumstances are investigated.

The respondent husband applied under section 9(2) of the Matrimonial Causes Act 1973 to make absolute a decree nisi pronounced in the parties’ divorce proceedings. The wife opposed the application because her financial remedies claim concerned alleged undisclosed wealth held through complex offshore structures.

The parties disputed whether the husband was beneficially interested in assets held through a foundation and by family members. The court could not determine those factual issues at the interim stage. The central question was whether the wife had established special circumstances sufficient to defer decree absolute despite the ordinary presumption in favour of granting it.

1. The application was dismissed. Section 9(2) of the Matrimonial Causes Act 1973 gave the court power to refuse or defer decree absolute under the residual power in subsection (1)(d).

2. The applicable approach, derived from Dart v Dart and the passage from England v England reported at [1980] 10 Fam Law 86, was that the husband ordinarily had a strong entitlement to decree absolute after the relevant period. The wife had to show special circumstances. The discretion was weighted heavily in favour of granting decree absolute and was not an ordinary balancing exercise.

3. The wife did not need to prove the exact prejudice that would result from divorce before decree absolute could be deferred. It was sufficient that the evidence established an exceptional case in which the consequences of changing from wife to former wife could be significant.

4. Dart v Dart was materially different because it involved disclosed assets and an intended foreign financial remedy application. Re G (Decree Absolute: Prejudice) was also distinguishable. The court accepted that inheritance consequences, allegations of inadequate disclosure as such, and possible disengagement from proceedings were not sufficient considerations. The material difference was the presence of complicated offshore structures, whose effect on the determination and enforcement of financial remedy orders could not safely be assessed before the factual investigation.

5. The wife had established special circumstances sufficient to override the strong presumption in favour of ending the marriage. She therefore succeeded on the application and was awarded her costs on the standard basis, assessed at £17,500 inclusive of VAT.