Q&As

In divorce proceedings, the petitioner agreed to apply for decree absolute at the earliest opportunity and this was recorded as a recital in a financial remedy order. The petitioner has failed to apply for decree absolute and has failed to make a lump sum payment to the respondent pursuant to the order. The respondent is not able to apply for decree absolute for another three months. Can the recital be enforced and can the respondent apply to expedite pronouncement of decree absolute?

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Produced in partnership with Max Turnell of 1 King’s Bench Walk
Published on LexisPSL on 10/09/2019

The following Family Q&A Produced in partnership with Max Turnell of 1 King’s Bench Walk provides comprehensive and up to date legal information covering:

  • In divorce proceedings, the petitioner agreed to apply for decree absolute at the earliest opportunity and this was recorded as a recital in a financial remedy order. The petitioner has failed to apply for decree absolute and has failed to make a lump sum payment to the respondent pursuant to the order. The respondent is not able to apply for decree absolute for another three months. Can the recital be enforced and can the respondent apply to expedite pronouncement of decree absolute?

In the absence of any undertaking, the recital of an agreement will be incapable of enforcement in family proceedings if the court would not have had jurisdiction to make an order in like terms (per N v N (divorce: ante-nuptial agreement)). Therefore, a recital which records a party’s agreement to obtain decree absolute as soon as possible may not be enforceable, although there is sometimes said to be an exception to the general rule where two conditions are satisfied, ie:

  1. an order of the court consists in part of a recital containing an agreement imposing a clear obligation on a party and in part an order, and

  2. the court would have had jurisdiction to make an order in the same terms as the recital

In Horsman v Horsman (Financial Provision), it was recited that the husband would provide the wife with a new car every three years, or after 20,000 miles, whichever was the earlier, and fund the running costs. The wife successfully enforced the recital by retrospectively varying the periodical payments order made in her favour and then enforcing the arrears. However, this appears to be a creative use of the courts’ powers in variation proceedings in order to meet the wife’s unmet ‘needs’. Particularly, ‘enforcement’ in this way would not have

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