Every divorce starts with the petition. The person who instigates the divorce (the petitioner) must demonstrate that his or her marriage to the respondent has broken down irretrievably.
The decree nisi and the decree absolute follow the petition. They mark the final two formal stages in any divorce. Until the decree absolute is finalised, the couple remain married.
WHO APPLIES FOR A DECREE NISI?
The petitioner must file certain documents at court. These are:
- The petition
- Acknowledgment of service form
Once the court is satisfied that this paperwork is in order and the petitioner is entitled to a divorce it will allocate a date for pronouncement of the decree nisi.
WHEN CAN I GET A DECREE NISI?
You can present a divorce petition after one year of marriage. Shortly after that you can obtain the decree nisi.
CAN I CONTEST THE PETITION?
Yes. But contested divorces are rare. Usually the husband and wife try to reach an agreement on divorce before presenting a petition. Family law groups like Resolution promote non-confrontational divorce, working in a constructive way to settle differences over finances and arrangements for children.
Many firms of solicitors, including Brookman have signed up to Resolution’s Code of Practice. This means we focus on helping you balance financial and emotional costs with what you ultimately want to achieve.
If one spouse objects to a divorce – or some of the grounds mentioned in the petition – he or she can contest or defend the case. If this happens, legal costs will be higher and a judge will have to decide whether or not there are sufficient grounds to pronounce a decree nisi.
In one recent case, a Mrs. Tini Owens failed in her attempt to obtain a decree nisi. She had argued that her husband’s behaviour was unreasonable. The judge decided that the examples of behaviour she relied on to prove the marriage had broken down irretrievably were actually “minor altercations of a kind to be expected in a marriage”.
Mrs Owens has lost one appeal of this decision and may now appeal to the Supreme Court. The situation she finds herself in has been widely criticised and has increased calls for a reform of divorce law so that there is no need to prove the ‘fault’ of one party to the marriage.
DO I NEED TO ATTEND COURT?
Only in very rare circumstances. For example, if one party decides to contest the grounds for divorce or is seeking reimbursement of his or her costs from the other side you may be required to attend court.
This year the government is piloting a new online divorce service. It is hoped that this will result in a more efficient and streamlined divorce service from the courts.
WHY DO I NEED A DECREE NISI?
The decree nisi is the intervening stage between the petition and the decree absolute. You are still married but once the decree nisi is in place the court can make a financial order at any time. Before the decree nisi the court can only focus on maintenance issues, not final settlement proposals in relation to pensions, the family home and other matrimonial assets.
WHEN CAN I APPLY FOR A DECREE ABSOLUTE?
A petitioner may apply for a decree absolute 6 weeks after the date of the decree nisi. If he or she does not apply, the respondent may do so three months after the expiration of this six-week period.
DO I NEED TO ATTEND COURT FOR THE DECREE ABSOLUTE?
As with the decree nisi there is usually no need to attend court unless some matter of complexity or contention arises. Your legal adviser or the court will let you know if you need to attend.
CAN I DELAY THE DECREE ABSOLUTE?
Often people decide to reach agreement on financial matters before applying for the decree absolute. If the issue does become contentious and the petitioner does not take steps to convert the decree nisi into a decree absolute, the respondent may apply to the court for the decree absolute.
In these circumstances there is a presumption that the marriage should be brought to an end. The person seeking to delay the decree absolute must show special circumstances as to why the marriage should not be legally ended.
WHEN WOULD ONE PARTY SEEK TO DELAY THE DECREE ABSOLUTE?
It does not happen often but it is worth highlighting that if one spouse dies between the decree nisi and decree absolute the divorce proceedings come to an end. The parties are still legally married. This means the surviving spouse is the legal widow or widower with all of the inheritance rights this entails.
If however a financial order has not been made before the decree absolute and one party dies before it is agreed, the surviving spouse will not be entitled to automatic inheritance rights and may lose out significantly on a financial settlement. He or she would not have the same financial remedies available against the estate as he or she would have had if the financial proceedings related to the divorce had been continuing.
In other cases where finances are extremely complicated it may also be advisable to secure a settlement before proceeding to the decree absolute. This is because after the decree absolute it may not be so straightforward to extract interests from certain categories of asset. These were the circumstances in the 2016 case of Thakkar v Thakkar. The wife wished to postpone the decree absolute because there was a question over the extent of the husband’s assets, many of which were apparently held offshore. The court decided to use its discretion not to pronounce the decree absolute. If it did not do so, the wife would not have the same range of remedies available to her. In the words of the judge, “It can make a very real difference particularly in offshore jurisdictions whether a litigant is a wife or a former wife.”
WHAT IF THE COURT REFUSES TO DELAY THE DECREE ABSOLUTE?
Sometimes one party seeks to delay the decree absolute for no good reason or to cause disruption to an estranged husband or wife who just wants to get on with his or her life. Perhaps the individual simply won’t accept the marriage is finally over.
We would advise against this. It is likely to lead to more uncertainty and tension among all family members. In addition there could be substantial cost implications if the court decides one party is unreasonably seeking to prevent a decree absolute.
WHEN CAN I REMARRY?
Once you have received your decree absolute you can remarry. At your wedding you will have to produce the sealed court document at the register office. It is not advisable to remarry before you have applied for a financial settlement because you will lose your ability to seek such an order. Even if financial discussions are ongoing any proposed agreement could be jeopardised by your remarriage.
WHAT DO THE TERMS DISSOLUTION, CONDITIONAL ORDER AND FINAL ORDER MEAN?
These are terms connected to civil partnerships. ‘Dissolution’ is the term used for the ending of a civil partnership. ‘Conditional order’ is the equivalent to decree nisi, and ‘final order’ refers to that part of the civil partnership dissolution process marked by a decree absolute in divorce.