Decree absolute SET ASIDE- guidance please.

Hello all fellow wikivorcers!
I wonder if I can get advice on the latest sorry chapter in my divorce!
Basically the background is, it’s a 10 year marriage no kids both working, I had all the assets when we met & a deed of trust was put in place 4 years ago to protect my assets pre marriage.

Almost a year ago my wife told me she wanted a divorce, she did so on grounds of unreasonable behaviour.....then she did nothing....so I encouraged her to apply for Decree Nisi, which she did.....then nothing. So at the allotted time I applied for Decree Absolute which was granted in Birmingham family court 5 weeks ago. I did this because in the unlikely event I died before a settlement was reached, I do not want my ex to inherit the marital home......which was mine before I ever met her! Or my pension!

During the last year my ex has refused all negotiations on a financial settlement, after 1 mediation session she cancelled. I have made her an ‘ offer’ 7 months ago which she did not respond to. We are living in the same house not saying a word to each other it’s intolerable. There has been no letters from her solicitor’s re reaching a financial settlement.

I firmly believe my ex is after half of everything I have ever worked for, but I still cannot understand why she refuses all attempts to at least discuss/ negotiate a financial settlement.....I do realise that I can take her to court which I am now considering.

Now I have a letter from Bury st Edmonds family court saying the decree absolute has been ‘ set aside’, which I guess means rejected. I presume my ex has appealed against it being granted.

My questions,
Is it worth appealing this?
Any advice on what grounds I could appeal on ?
As far as I am aware I followed the correct procedure, the decree absolute was issued. I am stuck in limbo because of my ex’s intransigence.

Any help gratefully received, I am at the end of my tether.


The text of the letter is basically as follows

‘ Before judge xxxx at family court Bury st Edmonds,
Upon reading the court file & upon the Respondent not applying for decree absolute in the proper form that;
a, any such application should have been on notice and should have included a statement of support with a statement of truth attached pursuant to rule 7.33 of the family procedure rules 2010
AND UPON the decree absolute being pronounced on xxxxxx as a result of procedural irregularity in that :
i the application by the respondent was not in proper form
ii there was no exercise of judicial discretion required by section 9 (2) of the matrimonial causes act 1973
iii it was an administrative error that the decree absolute was pronounced.

IT IS ORDERED THAT
1 the decree absolute in case number xxxxxx is HEREBY SET ASIDE
2 those decree absolutes already issued to be returned to bury st Edmonds divorce unit
3 any party may apply to vary or revoke this order. Any such application must be made pursuant to rule 4.3 / 18.11 of the family procedure rules 2020 and must be made within 7 days of the receipt of this order upon them.

What this means is that your application was faulty in some way, the fault was not spotted and the decree absolute was incorrectly issued.

Now that the fault has been identified the decree absolute has been set aside so you now have to apply again in the correct form or apply to amend your application to correct the fault.

In order to comply with the order you should return the decree absolute as paragraph 2 says. Paragraph 3 is standard wording which allows a party to vary or revoke an order that was made without a hearing. There would be no point in applying to revoke the order as the order corrects an earlier error of the court and revoking it would allow the error (the issue of the decree absolute) to remain.

It might be possible to apply to vary the order to allow you to vary your application to make it compliant in order that the court can reconsider your application but that's all rather messy and is more troublesome that making a second, correct, application for the decree absolute.

Once these things become tricky it is very easy to compound the error and make it difficult to unravel. From that point of view I would seek legal assistance to ensure that further documentation is drawn up correctly.

Charles

Even with a Decree Absolute in place there is a continuing financial claim until you have a legally bunding financial settlement.

It looks like the application as Respondent should have been notified to the other side. It should also have been supported by a statement. Where the Respondent makes the application an opportunity to object should be given. The reason for objecting may be that finances are not yet sorted, especially if eg there is a home rights notice in place. Home rights notices end on DA.

There is nothing to stop you being the applicant in financial matters even if you are respondent in the divorce. I would suggest this should be your focus.

Hadenoughnow

Once again thanks Hadenoughnow & Charles for your insights.

I have just called the divorce service. They say it was set aside because I did not fill in the D11 form which asks a judge to grant the decree absolute.
What I found strange is that they said it was purely an admin error on thier side that it was originally granted they also said that it was thier admin team that noticed the error so they themselves rescinded the decree.....I thought this was strange, as I had thought it was maybe my Ex’s solicitor that had appealed against it, but they said no.

Anyway they say I can now apply again by filling out forms D36. D11, it is then decided by a Judge & costs me £155.

I take your point Hadenoughnow about focusing on achieving a financial settlement. Problem is my Ex has refused all overtures of negotiation including cancelling Mediation so my only option it to go to court which ideally I don’t want to do.

Meanwhile she still stands to inherit my pension & the marital home if I die before a financial settlement is done so I would rather get the Decree Absolute granted as the financial settlement could take years to sort out.

Decree absolute update
I have now had a letter from my ex’s solicitor stating they are taking me to court for a financial remedy order, this is after almost a year of my ex refusing any negotiations with me. I believe the first hearing will be in December.

They also say if I re apply for the decree absolute they will resist it & seek costs from me for doing so as a financial remedy order will involve pensions so the decree absolute should not be granted until a settlement is finalised.

This leaves me feeling threatened and stressed.

Can I ask, is it likely the Ex’s solicitor’s will be able to make me pay thier costs if I go ahead with re applying for the decree absolute? It seems unfair to me as I will be paying my own costs, why shouldn’t my Ex pay thier own?

Also is it likely my decree absolute would be rejected again? I found out that I should have filled in forms D.11 as well as D.36. My reasons for applying for the decree absolute are that I want to move on with my life after nearly a year of my wife refusing any negotiation & if I am unlucky enough to die before a settlement is finalised my Ex will inherit the marital house & my pension.....which i do not want

Any advice gratefully received, feeling very down as it seems my ex wants to financially destroy me