Decree Nisi vs. Decree Absolute: Unraveling the Differences and Implications for Divorcing Couples

1. Facts & Procedural Posture Parties & context The case arises in contested financial remedy proceedings between spouses (or former spouses) (i.e. the “Applicant” and “Respondent” are anonymised as BC and BC ) under the Matrimonial Causes Act regime. The core dispute is not the division of assets per se, but whether portions of the Husband’s “open offer” (i.e. a proposal made to settle) may be struck out or redacted because they refer to conduct or statements made during a private FDR (pFDR) . Private FDR and the contested words By consent (and ordered at the First Appointment), the parties undertook a 2-day private FDR (i.e. outside the court process, before an independent evaluator). After the first day, the pFDR evaluator provided an “indication.” The Wife withdrew from the process (leaving with her legal team). The Husband, the following day, made an open proposal in correspondence, containing text which referred (in bold) to the Wife’s decision to depart, and to the timing relative to the evaluator’s indication. The Wife applied for those phrases to be excluded or redacted, contending they breached the confidentiality or privilege tied to the pFDR process. The Husband contended the wording concerned only “logistical details” , not substantive offers or the indication, and thus did not breach pFDR privilege. The parties incurred combined legal costs of £37,000 on that discrete (very limited) dispute over roughly 46 words of text—a figure the judge remarked upon as “startling”. Order sought & judge assignment issue Because the contested material would be seen by the allocated trial judge (if that judge heard the redaction application), the Wife applied to have her redaction/striking-out hearing before a different judge. Justice Peel heard the application and made the decision to strike the offending words from the Husband’s open offer. 2. Legal Issues The case turns on the interplay of: The privilege / confidentiality (without prejudice / without prejudice “meetings”) protections around FDR (and pFDR) under the Family Procedure Rules and their Practice Directions (especially PD9A). The permissible content of open offers (which are “on the record”) and whether referencing conduct in the FDR/pFDR process is allowed. The relationship (and possible tension) between “primary principles” of the Financial Remedies Court (FRC) and rules / practice directions lower in the hierarchy. The question of proportionality and costs in doing a micro-dispute over isolated wording. More concretely, the judge needed to decide: Whether the Husband’s phrasing improperly referred to statements or conduct in the pFDR, thereby violating pFDR privilege/confidentiality. Whether the prohibition of such references is absolute (save rare exceptions) or subject to a fairness exception. If the references were improper, whether redaction or deletion was required (i.e. the remedy). Whether the “primary principles” (which provide that parties should tell the FRC judge that offers were made and an indication given) permit disclosure of those two categories, or whether they are trumped by more restrictive rules. Whether the costs in this kind of application can or should be sanctioned or limited, given the disproportionate cost over 46 words. 3. Legal Framework & Key Authorities FPR / PD9A and FDR confidentiality FPR 2020, r 9.17(1) : The FDR appointment is treated as a “meeting for the purpose of discussion and negotiation.” Paragraph 6.2, PD9A : This is critical. It states that parties must approach the FDR openly and without reserve, and that non-disclosure of the content of such meetings is “vital,” forming an essential prerequisite for a fruitful FDR. It provides that evidence of anything said, or any admission made in the FDR, is inadmissible (save in very exceptional circumstances). Re D (Minors) (Conciliation: Disclosure of Information) [1993] Fam 231 : the classic authority for the confidentiality of conciliation processes, often cited in this context. Thus, the default legal stance is that what is said or done in the FDR (or pFDR) is off-limits for later use, to preserve the frankness required by settlement negotiation. Private FDR (pFDR) and its status The judgment emphasises (drawing on prior cases) that the same confidentiality ethos applies to private FDRs as to court-based FDRs. The President’s Circular (Financial Remedies Court Pilot Phase 2, 27 July 2018) supports—and even encourages—the use of private FDRs, suggesting that parties may agree to them and that they serve the same settlement function. Judicial statements, e.g. in GH v GH (2024) (cited in this judgment), also outline the role of FDR (including pFDR) in facilitating settlement, enabling an independent tentative evaluation of case strengths/risks. Procedure / Primary Principles of the FRC The Financial Remedies Court – Primary Principles (11 January 2022), at paragraph 8, state that when a private FDR has occurred, the next FRC judge will ordinarily wish to be told that offers were made and an indication given (so that the judge is satisfied a thorough FDR exercise has occurred). However, in BC v BC , Peel J holds that those “Primary Principles” must not be taken to override the more restrictive rules / practice directions that govern confidentiality. He considers that the Primary Principles go “too far” in effectively requiring disclosure of whether offers or an indication were given. Peel J notes that there is no citable authority to support that disclosure of those specific items is permissible. Other supporting authorities / doctrines: Passmore on Privilege (4th edn, 2020) : on the prohibition of using without prejudice communications or behaviours in later litigation. Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576 : which deals with refusal to engage in ADR and costs consequences, and principles about scrutinising ADR processes. Dyson LJ’s reasoning that the court should not investigate why a negotiation failed is invoked by Peel J. V v W [2020] EWFC 84 : Sir James Munby’s refusal to permit reliance on a court FDR transcript in later proceedings, affirming the “absolute bar” nature of FDR privilege. 4. Peel J’s Reasoning & Holding Permissible and impermissible references Peel J draws a distinction between: Basic factual details of the FDR/pFDR, which can ordinarily be disclosed (or should be), and Content of the discussion, deals, offers, admissions, conduct which must remain privileged. He agrees that the following factual matters are disclosable / permissible (and indeed often required under standard court orders): Whether the FDR/pFDR took place, and whether both parties attended. The identity of the pFDR evaluator and the parties’ legal teams. The location/venue of the pFDR. The length/time spent in negotiation. These are “unremarkable facts” and do not threaten the confidentiality of the negotiation itself. Indeed, such facts may be required to assure the court the process was properly engaged. However, Peel holds that disclosure or references to whether offers were made, or an indication given, intrude upon the substance of the pFDR process and would undermine the integrity of the procedure. He sees the Primary Principles’ “requirement” to disclose that offers were made and an indication given as incompatible with the higher-level confidentiality rules. So he rejects their application to override PD9A. Peel is also concerned about ancillary disputes if courts permitted inquiry into conduct or offers: subsequent litigation would erupt over who said what, when, or why someone left, which would erode the clean divide between negotiation and adjudication. Application to the husband’s wording & remedy On applying these principles to the precise 46 words under dispute, Peel finds that they do more than merely record logistical circumstance. They are expressive , casting the Wife’s exit as “retrograde,” “impulsive,” and referring to timing immediately after “receiving” the evaluator's indication. That goes beyond factual disclosure and converts into attack or characterization of conduct arising in the negotiation process. Because they cross the line into referencing the negotiation, they are not permissible under FDR privilege / PD9A as qualified by his interpretation. Thus, Peel orders the **offending words be struck out (i.e. deleted) from the open offer. Costs remarks and proportionality Peel is clearly critical of the costs incurred: £37,000 for fighting over 46 words . He describes this as “startling.” Although his judgment does not engage in a detailed costs order discussion (i.e. whether one side should bear the costs), the tone signals judicial impatience with disproportionate micro-litigation over privilege. Warning against a developing (undesirable) practice Peel warns against a trend whereby parties, after leaving a pFDR, seek to blame the other party’s conduct in open correspondence, in order to influence the trial judge’s view of their willingness to settle. He says that such usage is improper and should cease. 5. Significance & Impact Reinforcement of strong confidentiality for negotiation This case reinforces that FDR / pFDR confidentiality is robust and should not be eroded by parties trying to leak negotiation dynamics into subsequent litigation. It puts parties and practitioners on notice that conduct or characterisation of opposing negotiation behaviour cannot be slipped into open proposals. Limits to “Primary Principles” in disclosure BC v BC clarifies that the FRC Primary Principles are not carte blanche to override the stricter obligations in rules/PDs. Where rules require confidentiality, the Primary Principles must yield. Chilling tactical behaviour The judgment seeks to deter strategic behaviour in private FDRs (e.g. leaving suddenly, claiming sabotage, then using that in open offers). Peel’s warning suggests that such tactics will not be tolerated or accepted as fodder in open proposals. Costs and proportionality spotlight The case spotlights how disproportionate cost battles can arise even from narrow privilege issues. It may push parties to think twice before litigating minutiae over redactions. Guidance on drafting open offers / correspondence Practitioners will now have firmer guardrails: open offers must avoid alluding to negotiation conduct (especially post-indication). Any references should focus tightly on the substance of the offer itself. Potential tensions / need for careful drafting of orders Going forward, parties may need to ensure that their procedural / First Appointment orders narrowly restrict what can be included in open proposals—and that redaction or sealing mechanisms are considered in advance where disputes may arise. 6. Observations, Critique and Questions Absolute approach vs fairness exceptions : Peel takes a fairly strict line, rejecting even references to offers or indication. Some might argue for a modifiable fairness exception (in rare cases) to permit limited disclosure where justice demands it. But Peel’s concern about undermining the negotiation process is persuasive. Risk of overdeterrence : Could this lead to overly cautious drafting, with parties shying away from legitimate contextual framing in open offers? Practitioners will need to balance clarity with strict neutrality. Cost discipline needed : The £37k cost over 46 words is indeed striking; courts may need firmer control over costs in micro-disputes to prevent disproportionate fights. Uncertainty around what is “logistical” vs “characterisation” : There remains borderline cases where parties might argue something is a neutral factual detail (e.g. “the meeting ended at 4.15 pm”) vs an inference about conduct. The line may not always be easy to delineate. Limited guidance from case law : Peel notes the absence of citable authority allowing disclosure of offers/indications. This implies there is space for future development (perhaps at appellate level) to further refine the boundary. Enforcement in private FDRs : As private FDRs are out-of-court, there is limited capacity to police conduct in real time (unlike in-court FDRs). The judgment’s deterrent value depends on parties being risk averse to subsequent redaction applications. Interplay with cost orders / conduct sanctions : The decision leaves open whether a party can be sanctioned for abusive conduct in pFDRs (e.g. leaving abruptly or seeking to recharacterise). Peel’s warning suggests he supports such accountability—but how that will manifest (cost orders, penal measures) will need elaboration. For family law advice and family court representation contact Stephanie Heijdra Family Barrister via sheijdra@winvolvedlegal.co.uk