Thursday, June 09, 2011

I'm still going to refer only to 'decree nisi' and 'decree absolute'

Thankfully, I am no longer practising, but if I were then I'm sure the fact that decree nisi and decree absolute are now sometimes referred to as 'matrimonial orders' would be a cause of considerable confusion.

The reason for the confusion is, of course, that the Family Procedure Rules Committee wanted to bring in the new terminology with the Family Procedure Rules 2010 and accompanying Practice Directions. However, the Committee did not, of course, have the power to change the terminology in the Matrimonial Causes Act (in fact, it seems odd to me that they might even have the power to require the use of different terms to those decided upon by Parliament, but that's another matter), and in the event, the old terms were retained. That would be fine, but the Rules and PDs still defiantly use the term 'matrimonial order' on occasion, for example in Practice Direction 7A.

Now, I'm all in favour of modernisation, but as any first year law student will tell you, statute takes precedence over rules, so until such time as Parliament gets off its backside and updates the terminology, I'm still going to use exclusively the old terms.

4 comments:

  1. funnily i have just had cause to research a matter that sent me to 7A inter alia. the major difficulty in writing my advice was harmonising terms like decree or declaration between the FPR2010 and MCA 1973.
    great minds perhaps? or related dinosaurs; it would be hard for me to be the latter as this is the first time i have bumped into family law outside of tlata matters. maybe i am so progressive i have evolved immediately into a dinosaur... is that possible?

    and the word verification ... 'studd'. oh yeah baby.

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  2. ok; i reckon if you say it, it must be correct!

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  3. You're getting the hang of this family law.

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