Marilyn Stowe Blog

Delaying the Decree Absolute: another look at Miller Smith v Miller Smith

decree-absoluteIf one party wants the divorce to be finalised but the other does not, and the parties’ finances have not been resolved, may the decree absolute be delayed?

Let’s begin with the basics. The divorce process in England is conducted in three stages:

1. The issue of a divorce petition.
2. The grant of a divorce decree nisi by the court.
3. Obtaining a certificate of decree absolute from the court office.

The Petitioner, who has initiated the process, files the marriage certificate on issue of the divorce petition. It remains lodged with the court and in return, on decree absolute, the certificate bearing the court seal is the effective “swap.” The parties are legally divorced only when there has been a grant of decree absolute. When a divorced person wishes to remarry, a sealed copy of the decree absolute must be produced as evidence the party is legally free to do so. It is possible to be fully divorced without a financial settlement being resolved.

At decree nisi stage the parties are almost, but not quite, divorced. The parties are still able to change their minds about getting divorced. That is why it is called nisi: the Latin term for “unless.” There is a six week and one day minimum mandatory period between grant of decree nisi and decree absolute, so that if the couple do want to change their minds, they will remain married. It happens rarely – but it does happen. I have one client who has twice obtained decree nisi from her husband, only to backtrack from the point at which the divorce was to be finalised. So it is a worthwhile part of the procedure and serves its purpose.

In most cases, however, too much water has passed under the bridge and the obtaining of decree absolute is public recognition that the parties, who are already divorced in body and mind, are now legally divorced. For most, it is the beginning of a new life and new, guilt-free relationships.

In some cases there is, in fact, a rush to decree absolute. For example, if there is a potential bankruptcy on the horizon and a financial settlement needs to be implemented. Or if there is a new baby on the way, and an urgent need to remarry. I have been involved in one case where in such a case, exceptionally, the mandatory period was shortened.

This post considers the opposite position: when one party does not want to be divorced so long as the finances remain unresolved.

Applying for the decree absolute

It is a straightforward process to obtain a decree absolute. A single sheet application in a standard form is signed and handed in to the court office, together with a fee of £40. The court office seals and issues a certificate of decree absolute. Sometimes, however, the Petitioner refuses to apply. Perhaps emotionally, it seems a step too far, too soon – and the Petitioner, despite having initiated the process, cannot bring him self or herself to take the final step. So the Respondent may also apply, three months after the earliest date that the Petitioner could have done so, and that application too is usually a formality. Sometimes the parties agree at the outset that neither of them will apply for decree absolute until all the issues between them are resolved.

In fact there are occasions when, legally, it is unwise to apply for decree absolute. One example is when vital benefits could be lost if one party was to predecease the other without a court order being in place for a financial settlement – and if the losing party cannot properly be compensated out of the other assets for the loss. It is very rare indeed for someone to die during divorce proceedings, but it can still happen. It has happened in two of my cases over the last 20 years. Benefits such as a widow’s pension,  automatically payable under  a husband’s pension scheme, may be lost if the husband dies suddenly and there is a decree absolute, but the financial side is still rumbling on and no financial court order is in place.

Similarly, a religious divorce may be required to be in place before the parties are finally divorced. It is important to be aware of the possibility. Lawyers do argue then about the circumstances in which decree absolute should be delayed. Of course, it is always wise to consider your own position with your solicitor, before agreeing to decree absolute.

Decree absolute and the law

In the case of Miller Smith v Miller Smith (No 2) (2009 EWHC3623), a case on which I have posted before, my firm represented the husband. The Petitioner husband obtained his decree nisi of divorce, and the wife applied for the decree absolute to be postponed. She failed.  The facts of the case are set out in the law report and I do not intend to comment on them. I write only in relation to the law.

In paragraph 17 of his judgment Mr Justice Baker set out the law, having heard submissions from James Turner QC for the husband and John Wilson for the wife. He made reference to the statutory powers that the court has, outlining the circumstances in which the court “shall not” or “may” make a decree absolute under sections 8-10A of the Matrimonial Causes Act 1973. These include delaying decree absolute until financial provision has been made in certain divorces which are proceeding on a separation basis, and delaying decree absolute when a religious divorce is required to be put in place first.

After considering the statutory powers and following legal argument from both sides, His Lordship also found that there is an “inherent jurisdiction” of the High Court to delay making a decree absolute in appropriate cases. The case of England v England (1980) 10 Family Law 86 was a Court of Appeal decision where the court delayed decree absolute until a maintenance order had been made in favour of the children. The Court of Appeal followed the much earlier cases of Bromberg v Bromberg (1962) and also in Parks v Parks (1971), where Lord Denning in the Court of Appeal had stayed making the decree absolute because the financial settlement between the parties was set aside for material non-disclosure. (That’s an interesting idea!)

The more recent case (although unreported) of Dart v Dart in 1995 was also a Court of Appeal case. The Court held that the husband, who was also seeking his decree absolute, was entitled to it unless the wife “could show special circumstances to defer it”. She could not.

Citing Dart, Mr Justice Baker held that the power to delay decree absolute “is an exercise of discretion of the trial judge but that exercise of discretion weights the granting of the decree absolute against the special circumstances very heavily in favour of the grant. It is not a balancing exercise in the ordinary sense”.

One of the arguments in Dart was the most common argument for a delay, namely that of the husband’s possible death prior to the finances being resolved – and therefore the wife being worse off. Lady Justice Butler Sloss (as she was then) pointed out that Mrs Dart had claims under the Inheritance Act 1975, which were sufficient to meet all her legitimate claims. Therefore Mrs Dart would suffer no prejudice, despite the inconvenience of having to make her application.

That is the important point for practitioners to bear in mind. It is not only that potential benefits may be lost; but also that the wife may be prevented, because of death, of pursuing her same claims against the estate that she would in the financial proceedings against her husband.

Given that there is heavy weighting in favour of the grant of decree absolute, before an application is made only on the basis that there would be a potential loss of a widow’s pension, practitioners should consider the overall likely financial award to their client on divorce – and whether the husband’s estate could still meet it. If it could, then an application for delaying decree absolute could result only in a potentially heavy costs award against an unhappy client.

Posted by Marilyn Stowe on 19 April 2010
Categories: Divorce
Tags: , , , , , ,

150 Comments

  1. Joe on November 3, 2010 at 11:47 am

    What if a finanacial settlement has been agreed and endorsed by the court but the petitioner fails to apply for decree absolute for some considerable time? Would the financial settlement be capable of amendment by one party or the other if one of those partiy’s financial circumstances materially alter?

  2. steve on January 17, 2011 at 11:47 pm

    What if an Financial Dispute Resolution FDR date had been agreed, and the Plaintiff mistakenly applies – and is granted – the Decree Absolute without a full resolution or agreement of the financial staus of two parties ie before the FDR takes place?

  3. Marilyn Stowe on January 18, 2011 at 6:20 pm

    Steve it generally doesnt matter. Without explaining your specific problem I cant add anything else!
    Do note there may be a problem if one party dies between Decree Absolute and agreement or order in relation to the finances – automatic benefits payable to a spouse on death, may be lost.
    The grant of a divorce before a financial settlement is agreed or ordered may also prove to be a problem if a religious divorce is also required.

  4. steve on January 19, 2011 at 6:01 pm

    Thank you.

    My ex-wife applied for an Absolute without my knowledge, and someone has said that because the financials have not been agreed, there may be an advantage to me in that the Courts had no jurisdiction over my pensions.

    Is that right?

    Has my ex-wife made any mistakes?

  5. Marilyn Stowe on January 20, 2011 at 9:54 am

    No.
    I think confusion has probably arisen because of the legal position for the surviving spouse on death of the other in relation to the deceased’s pension if there is Decree Absolute but the financial position hasn’t been resolved.
    But as with everyone who seeks advice on the blog, don’t rely on me – check your own situation with your own lawyer.

  6. Rita Royal on February 8, 2011 at 4:39 pm

    hello, my question is…
    can my husbands ex wife claim on his house, in brief….it was their matriimonial home she committed adultery and went to live with her man, she asked for a clean break of £30,000.00 which he gave her and she signed the house and it’s debts over to him which when they split was over “£40k plus the mortgage and he had to remortgage to pay her the money. now after a period of 7 years plus she wants him to sell the house and pay any interest acrued to their children which is what he’d verbally agreed to do at the point of the split and has no intentions of not paying them but can she dictate when it has to be done? where does he stand legally? surely there’s a time limitation clause to protect the parties involved?
    yours faithfully,
    Rita

  7. Marilyn Stowe on February 8, 2011 at 5:37 pm

    Rita
    What does the court order say?
    If there was a clean break and the house is in his name I don’t see how she can oblige him to sell it.
    Regards
    Marilyn

  8. Rita Royal on February 8, 2011 at 9:14 pm

    Marilyn,
    Thanks for the reply, there has been no court order, the decree absolute was 2004 and there was nothing else since, the only thing is that nothing was written down as they both wanted it over and done with as quick as possible, she wanted to move on with her partner and he just wanted peace although the children stayed with him until they eventually set up their own homes
    but since it was said the he was remarrying, which he has now done, she got in contact with a solicitor about the agreement they had regarding the profits of the house going to the kids,
    can they make him homeless and force him to sell the house?

    with regards
    Rita

  9. Marilyn Stowe on February 8, 2011 at 9:37 pm

    Rita,
    It seems pretty clear that if he paid her the lump sum and she transferred the house, he took over the mortgage and everything continued as agreed that even if she applied to the
    court it would uphold the agreement.
    He now has a choice of doing nothing and waiting for his ex to make a move, or making an application to the court for an order in terms of the agreement.
    He needs to take legal advice to decide what to do.
    Personally I’d stop worrying, because I can’t see why a court would force him to sell on the basis of what you are saying.
    He does need to check with a solicitor however to make sure the facts are correct and then be fully advised on the law.
    Regards
    Marilyn

  10. Rita Royal on February 9, 2011 at 12:19 am

    Marilyn,

    Once again thank you for your reply, it’s lifted a bit of worry for him he’s going to seek legal advice as advised thank you for taking the time.
    with regards
    Rita

  11. Mark on February 12, 2011 at 3:14 pm

    Hey

    my wife filed a divorce after we were separated for one year under unreasonable behaviour, she used false reason accusing me of admitting to her i am homosexual.
    she is living with her boyrfriend at the mone , the one she left me for, he used to be her ex bf. i dont agree with the reason she mentioned as they are not true , but in another hand i was told defending the petetion costs lot of money. so if i refuse to divorce her to delay the procdess for another year or more , and here in the uk if u r separated more than 2 yrs then u can obtain divorce with out giving reason.. is it the right thing to do ????? bear in mind i dont wish to spend lot of money for defending the petetion or cros petetion????????? any help please??????

  12. Mark on February 13, 2011 at 10:57 am

    IF I REFUSE TO DIVPRCE HER AND PROCESS WAS DELAYED FOR ANOTHER YEAR TO MAKE IT 2 YRS CAN SHE STILL USE SAME FAlse GROUND that she used THE FIRST TIME FOR DIVORCE??????????????????

  13. Marilyn Stowe on February 16, 2011 at 5:21 pm

    Mark your enquiries are good examples of why divorce should be “no fault”
    I dont agree with forcing couples to look backwards and criticise each other in order to divorce. It makes things worse.However, at the moment that is what must happen if one party wants to divorce quickly and not wait for at least two years. The Family Law Protocol was introduced in order to make things less unpleasant and you should ideally have received a draft petition to approve before it was issued. I assume you did not.
    There are things you can still do, which are not particularly expensive but they sound tricky to a non lawyer which is why I suggest you see a solicitor.
    You should file the acknowledgement of service which accompanied the petition straight away at court. You have options when you complete it -saying you do not agree the contents of the petition but are not defending because of the cost,(and that will resolve the problem for you) and you object to paying her costs, or that you intend to defend and cross petition based on her adultery. If you do the latter, you get a 28 day automatic extension of time before your wife can proceed, for you to actually defend and cross petition and reach agreement about paying the costs of the divorce. It would be costly however to go all the way to a full hearing.
    But, having lodged the Acknowledgement, you would then use the 28 day period to try and get the petition amended by agreement with your wife or her solicitors, an agreement about costs and if you do decide to defend and cross petition on her adultery you can then offer to proceed on your cross petition, hers to be stayed or for there to be cross decrees, so you divorce her and she divorces you. Again all on the basis of no order for costs.
    Family solicitors know all the above and all the risks, so you should instruct someone fast to fully advise you on all the facts, because there is only a week for filing the Acknowledgement of Service from the date of servce and if your wife can prove service of the petition on you, she could proceed to apply for a Decree Nisi of Divorce, straight away. If your wife has done this you could still apply to the court for an extension of time.
    Im sorry this is complicated, and I know this might read like gobbledegook, but you are entitled in law to protect yourself. I can only outline the law in a difficult area in need of reform, your solicitor will advise you further about what you should do.

  14. Mark on February 16, 2011 at 5:57 pm

    yes i received the petetion draft from her lawyer where she states i admitted to her i am homosexual that is how i found this out , i have instructed a lawyer and she made a draft that wont offend each others for her lawyer to use for the divorce(negotiation) and my wife refused it , i was told that by my lawyer that she is deliberately want to hurt me. so now she said the better way to do it is to say go ahead with divorce proceeding but i dont accept the allegation she made. defending or cross petetion i was told is so expensive , so i cant afford paying this costs and also she told me it is highly unsuccesful also my wife covered by legal aid so ishe wont spend any money from her poket at all …she wont even pay it back legal aid money as she will leave uk after her course , i am so annoyed with this uk law for divorce , it means anyone who apply for the divorce first are the victims and the respondent are the guilty ones it is very unfair , law should be adjusted. i am sure the court receive too many complaints about this they need to look into it.
    my worry now by accepting for the divorce to go ahead and not accepting the allegation wont affect me to remarry again ……..it is horrible and nasty of her to do this …………
    so when you say i dont accept the cost for her divorce , my lawyer did not advice me about that yet.

  15. Michael James on March 18, 2011 at 4:37 pm

    Hi Marilyn
    my friend is 57 her husband is 60. they are going through a very messy and expensive divorce.
    FDR is due shortly, to be followed by a decree absolute some time after.
    Her problem is that he has deliberately had his hours reduced by 1/3 and subsequently his salary has reduced also.
    She knows, beyond a shadow of a doubt that, once the absolute is granted, his salary will revert back to full pay.
    Obviiously this current reduction in salary will affect his CETV and she is worried that her pension share will not be a feflection of his true worth. I know about ‘earmarking’ and the risks, but my question to you is simply, can an order be made against his final pension.

  16. Marilyn Stowe on March 19, 2011 at 9:10 pm

    Hi Michael
    Your question isn’t easy to understand and raises quite a few issues. First should your friend proceed to DA proceed without a financial order in place? Check because there is no guarantee the FDR will be successful.
    Second the most common order a court will make is a pension sharing order based on a fair division of the current value of the fund but also by reference to a fair division of all the other assets which will also be considered. An ear marking order is now rare because of the risks. It’s up to your friend to seek specific advise from her lawyers because she is of an age where a guaranteed net of tax income to meet her needs for the rest of her life is critical out of the available assets. The Duxbury tables are a rough guide.
    Third maintenance if it is still payable, can be set so as to either ignore the drop if the court
    considers it to be a devise, or to increase in line with increases in income until her husband retires.
    Without more formation I can only give you a rough guide as to the usual approach and I hope it helps.
    Regards
    Marilyn

  17. Jasmine on May 20, 2011 at 1:24 pm

    Hi Marilyn,

    My partner ( the respondent ) filed for and was duly granted a decree absolute at the end of March.

    In mid-April he received a letter about a court hearing on May 7th to discuss the absolute being issued in error. He was not in a position to attend, but sent a letter to the courts asking them to uphold the absolute as the statement of arrangements for children and a financial agreement are both in place.

    Yesterday he received notice that the absolute has been set aside pending a hearing on July 5th.

    When he filed for the absolute the court sent it by return post and as such his ex-wife wasn’t given the opportunity to attend.

    Given that all elements were in place, and both sides are happy, could the judge at the hearing have let the absolute stand?

    I’ve tried googling this any which way but can’t find any other examples of a court setting aside an absolute because they’ve made a mistake!

  18. Marilyn Stowe on May 20, 2011 at 2:14 pm

    Hi Jasmine,

    Because your partner is the Respondent, he would have to apply on notice for the decree to be made absolute but it seems his wife was never served and therefore knew nothing about the application. It looks as though the Court did act in error simply by issuing the Decree Absolute.

    Because she hadnt been correctly served, the Court does have power to set aside the Decree.

    However, as everything is agreed, I dont see why he is not entitled to the Decree anyhow?

    It will probably just be a case of them both attending a short appointment before the District Judge to confirm the position and he will then make the necessary Order.

    However, to be on the safe side, as I am not in possession of all the facts I would definately suggest checking with his solicitor, because I dont understand why his wife/her solicitor if she had one, didnt immediately apply for Decree Absolute once everything was agreed. And why his solicitor didnt ensure this had happened, if he also had one at the time.

    He might also speak to the Court office to confirm the situation also.

    Best wishes,

    Marilyn

  19. Katie on June 15, 2011 at 1:38 pm

    Hi Marilyn,

    My husband applied for the decree absulute on Friday. I am a little worried as we have not sorted out the finances yet. He seems to think that I will not be entilted to any of his pension now. We have a house in joint names where I currently reside in with our child.

    I have just instructed a solicitor and have made an appt for myself and my husband to attend mediation.

    Can you please confirm if what I have done is correct. Also can you tell me how long it will take for the absulute to come through once applied for.

    Many Thanks

    Katie

  20. Marilyn Stowe on June 15, 2011 at 4:08 pm

    Katie,

    If you haven’t already seen a solicitor, you should see one straight away so you can be fully advised about your entitlement.

    Do not remarry if you are intending to do so, without first making sure you have issued a financial application arising out of this divorce. In fact if you are considering remarriage or cohabitation with someone else, then you should take legal advice first. This may not apply to you, but could apply to other readers who are also respondents in divorce proceedings, as you seem to be, if your husband has simply applied for Decree Absolute without a hearing.

    The issue of the grant of Decree Absolute (which is simply a paper process done in the court office, then they send out the certificates to both of you) does not mean that you have no claim on your husband’s pension.

    We tend to advise some clients not to apply for Decree Absolute so they don’t lose automatic benefits to which they would be entitled in the event of a spouse’s death before a settlement is in place. But dont worry too much about this.
    Take legal advice about your full capital and income entitlements and don’t enter into mediation before you are fully informed about the entirety of your husband’s financial position and feel confident you can handle negotiations.

    I think that’s what lawyers are there to do – I would say that, wouldn’t I – but it is our job and it seems from what you write that you are far less clued up about this process than you should be. It’s your life, your divorce and your financial settlement, remember. Even if funds are tight, getting good legal advice is for you, and anyone going through this process, a prerequisite to any settlement.

    Best wishes,

    Marilyn

  21. Katie on June 16, 2011 at 8:21 am

    Thank you Marilyn,

    I am not planning to remarry now or in the near future, can think of nothing worse after going through all this.

    I went to see a solicitor on Mon and she has advised me on my financial position so I am feeling more confident about mediation, lets just hope it works.

    My main concern was the absolute coming through first and loosing out as a result, but you have cleared this up for me.

    Thank you

    Katie

  22. Belinda on June 23, 2011 at 2:26 pm

    Hi.
    My question is this: what are the possible reasons behind the judge delaying in granting an absolute when there is no financial settlement and no children involved.
    Thank you

  23. Marilyn Stowe on June 23, 2011 at 8:05 pm

    A judge can only act in accordance with the law and should fully explain his reasons, which are available in writing by obtaining a copy of the transcript, and are always potentially subject to appeal.

  24. claudia on July 10, 2011 at 10:04 pm

    Hi my question is: my husband solicitor send a draft order where it said that i acept £65.000 to transfer the house to my exhusband name, i have signed it becous i thougt it was right to have half each; but i have an 18 months old baby and we living in a room, i think he should move out for my son and i to live in the house becous the house is register in both our names and do the setlement later when he is older and dived it between the three of us.Can this still be possible if my solicitor send the papers signed to my exhusband solicitor

  25. Marilyn Stowe on July 11, 2011 at 10:02 am

    Claudia,

    You must see a solicitor immediately. Today if possible. Please get some urgent legal advice. I have no idea what’s been going on here but it may still not be too late.

    Do something urgently for the sake of you and your child.

    Marilyn

  26. Cody on July 11, 2011 at 1:00 pm

    I am currently at the Decree Nisi stage of my divorce. I am the respondent in the divorce. The Decree Nisi was issued 27 August 2010. My wife has dragged her feet for months on the FDR. The court is now requiring that I submit a mountain of information about some holdings I have offshore (I am American and she is British). Both my wife and I are unemployed and receiving Job Seekers allowance and thus receiving Legal Aid. This process of the FDR in my opinion could have been finalised months ago but now isn’t scheduled for another hearing until 17 November 2011. We have traded Form Es before out court hearing on 10 June and my wife’s solicitors claimed that they didn’t have time to review the Form E so somehow the Barister representing my wife, convinced the judge that he should have more time to review the documents and that I should provide more information about my offshore holdings which were outlined in detail in the Form E already. My question is can I apply for a Decree Absolute and bypass all this ridiculous British Legal Posturing? As it has now been 11 months since the Decree Nisi was issued, I am legally able, as the respondent, to apply for a Decree Absolute as I understand it. Is that true? What would happen to the FDR process if the Decree Absolute was granted before the next hearing? Is that even possible?

  27. Michelle on July 11, 2011 at 1:19 pm

    Hi Marilyn, the nisi is due to be issued/agreed this week, however, no financial settlement is in place, the ex-husband to be does not have his name on any deeds, nor did he contribute directly to the mortgage, nor maintenance of the house – yet he has applied for a charge against the house and is now claiming that he is entitled to 50% of the value of the house – which currently houses a 17yr old son (not his!) – however, he is offering to accept a settlement of GBP25K in exchange for making no further claim against the property. There has been some domestic abuse (him to her)
    should she offer to settle with a lump sum, or does she have grounds to refuse any financial settlement? – they have no children together, he works earning approx. same salary as her

  28. Marilyn Stowe on July 11, 2011 at 8:49 pm

    Cody and Michelle.
    Thanks for your enquiries. There are lawyers involved in both cases so you must ask them for specifics.
    Grant of a Decree Absolute ends a marriage and it is the issue of a certificate in a court office. It can be made on request by the Petitioner without a financial settlement being in place. A petitioner may apply for Decree Absolute six weeks and one day after Decree Nisi unless the Respondent seeks earlier to prevent it, in which case the Respondent must apply to the court to prevent Decree Absolute, and the above case is an example.
    A Respondent may apply for Decree Absolute if the Petitioner refuses, 12 weeks after the 6 week1day period has elapsed. But instead of filing a request, which is all the Petitioner needs to do, this has to be by application to the court and the Petitioner must be served with the application and has the right to object. Again the basis of the objection must have real merit in law.
    A Decree Absolute can also be indefinately postponed where a religious divorce needs to be completed and this avoids a ‘limping marriage:- being ended in civil law but still subsisting in the parties religious law.
    I hope this helps.
    Marilyn

  29. Cody on July 12, 2011 at 11:54 am

    Thanks for your response. Can you please clarify your point about the respondent filing an application for Decree Absolute “…this has to be by application to the court and the Petitioner must be served with the application and has the right to object. Again the basis of the objection must have real merit in law.” What would constitute “real merit in law”? Would this include a lack of formal agreement as to contact/custody of the children? Would this include lack of closure in the FDR process? As the not-at-home Father who spends as much time with his his kids as possible, I want to know if a lack of formal agreement on contact before Decree Absolute will adversely affect my legal rights to see my kids. Also, where would that leave the FDR if it is not yet completed when Decree Absolute is granted? Thanks again for your comments.

  30. Marilyn Stowe on July 12, 2011 at 12:15 pm

    Hi Cody
    You need to consult your lawyers as to whether you can hold up your DA. I cant advise you. they have all the relevant information not me.
    The arrangements for the children were considered by the Judge before Decree Nisi and it’s at that point you would normally object to grant of a decree in relation to children matters.
    Marilyn

  31. Cody on July 13, 2011 at 11:27 am

    Marilyn,

    You misunderstood. I don’t want to hold-up the DA I want to push it ahead but just want to know what the potential ramifications are for the existing FDR currently in process and contact with my kids if it goes ahead.

    Thanks,

    Cody

  32. sebs on July 13, 2011 at 9:01 pm

    Hi Marilyn

    A matter where an applicant for divorce dies before the matter of divorce is finalized ,how does the court dissolve or approach that matter.will the matter be regarded as of the divorced otherwise

  33. Marilyn Stowe on July 13, 2011 at 9:56 pm

    Hi Sebs
    There can be no divorce in English law if one party dies before the divorce is made absolute.
    Regards
    Marilyn

  34. Suz on July 14, 2011 at 10:18 am

    I have seen several places that say you should have a clean break agreed etc. However if there is no house,savings or assets from marriage as rented for whole period, both earn same salary and there are no children and the marriage was only 16 months is this necesarry and could they have a claim on any future assets after the decree absolute is granted. Thanks

  35. Marilyn Stowe on July 14, 2011 at 11:44 am

    Suz:-
    Decree Absolute does not give you a financial clean break. You must jointly apply for a clean break and the court order will then end all claims both of you have against the other, past present or future.
    Take legal advice from a solicitor about the procedure.
    Regards
    Marilyn

  36. Suz on July 14, 2011 at 12:55 pm

    Thank you. The plan was not to do one as there are no assets or anything that is worth splitting would this be ok?

  37. Marilyn Stowe on July 14, 2011 at 1:22 pm

    No! If you want absolute certainty for the future, you will need a court order.

  38. Yvie on August 29, 2011 at 4:40 pm

    My son received his decree absolute in April 2010. He has never had any copies of the financial arrangements settled upon either from his solicitor or the Courts. I am puzzled and worried about this.

  39. Marilyn Stowe on August 29, 2011 at 6:57 pm

    Hi Yvie. No point in puzzling. Ask your son to speak to his solicitor straight away and find out.
    Don’t worry about the DA being in place, it shouldn’t affect the financial settlement but I agree there is usually a court order about finances on divorce.
    It may be that terms are still being agreed or the court has raised a query.
    Best wishes,
    Marilyn

  40. Yvie on August 29, 2011 at 7:10 pm

    Hi Marilyn – I am so surprised to receive a prompt reply on a Bank Holiday. Thank you for responding. Can I explain what has happened. My son during the divorce talks agreed to transfer his share of the property to his ex. He has never seen anything about this in writing though. he received a letter recently (about three weeks ago) from his solicitor with a document from the other side. The building society were happy to transfer the property but he had to remain on the mortgage with responsibility for the mortgate and sign he was in agreement with this. His ex. has been paying the mortgage now for nearly two years and he is renting a property. He is OK about transferring the property but thought that his ex. would either remortage or sell the property and take profits. He has concerned that once his ex. is the sole owner she may borrow further on the property and he would be liable for any extra borrowing also. He phoned his solicitor to say he was not happy to sign the document in its present form. She said she would get back to him after looking at the Orders.

    Coming off the the telephone, he then realised he had never had any correspondence or Orders connected with his divorce. There was a letter from him to his solicitor dated 10 November 2010, asking specifically about this. There was no reply to that letter. There was however, a letter saying that she was closing the file. He hand delivered a further letter to the office two weeks ago asking why he had had no correspondence on the financial settlement. She has not replied to him as yet and no-body has telephone him to confirm receipt of the letter.

  41. Marilyn Stowe on August 29, 2011 at 7:39 pm

    Dear Yvie
    This all sounds very odd. It seems as though there has been a complete breakdown in communication if the solicitor has written to say she is closing the file and not responded since. Is there an outstanding account? Has he kept her fully instructed? Why would she not conclude the case? Are there two solicitors involved, one in the matrimonial side the other doing the conveyancing? it’s not clear. Either way he needs to find out.
    The current firm (if it’s the same firm as the matrimonial firm) must have a complaints procedure and if he is being ignored, I suggest he asks for a copy and uses it.
    He could also consult a new solicitor if he wishes in a separate firm and ask for advise about his position.
    It doesn’t seem as though there is a full agreement or an order in place and so until there is an agreement which he is happy with and an order then he mustn’t sign up to anything else.
    That’s as far as I can go, he needs to contact the people with the answers.
    Finally for completeness, I should also mention the Legal Services Ombudsman but I think they will expect him to go through the firm’s complaints procedure first.

  42. Yvie on August 29, 2011 at 7:56 pm

    No problem with the bills, the final cheque was enclosed (and cashed) with the letter to her of 10 November 2010 asking about financial correspondence. The one solicitor has been dealing with his divorce and also children’s matter (fully paid also). he produced his pension documents and bank statements as requested which he assumed would be sent to the Court. He has never had any concerns about his solicitor previously. She has always seemed on the ball and very competent.

    I would imagine that she closed the case because she thought it was all finalised. In that same letter to her, my son also asked for the return of his pensions documents. They were not returned. I telephoned a few weeks later to ask about them and was told the file had gone to storage and needed to be retrieved. The pension documents were eventually returned.

    There is a complaints procedure, the firm is very well known in the area. I think my son would like it sorted without a formal complaint if possible.

    My son has no intention of signing this document as it stands, but is OK about the house going to his ex. he has two children. I am relieved you think he shouldnt sign until he has further information.

  43. Neil on September 8, 2011 at 10:27 am

    Marilyn,

    Sorry to bother you, i was wondering if you could give some general advice on the divorce procedure?

    I currently am the respondant, i have my decree nisi and it is now 6wks since recieving it, my ex-wife will no doubt be applying for the decree absolute within the next day or 2, as of yet finances haven’t been mentioned, on the original petition all the boxes were marked stating a future financial order could be applied for.

    Can i ask the latest you can apply for a financial order? If a decree absolute is granted in the next few days and nothing has been applied for in terms of financial orders what rights are there, can your ex apply for financial orders after this date?

    Sorry im sure it’s quite a basic question, the whole divorce process is so confusing, and as of yet i haven’t needed a solicitor so have been unable to get much advice on the whole process.

  44. Marilyn Stowe on September 8, 2011 at 3:58 pm

    The common mistake people make is thinking that the decree process affects their entitlement to a financial settlement. It doesn’t. After Decree Nisi the court can make final orders and after decree absolute the orders can be implemented.

    But the entitlement to a settlement is unaffected.

    So you can apply at any time UNLESS you have remarried. That will affect your entitlements particularly if you are the Respondent to the divorce.

    So don’t remarry until the finances are resolved.

    But the above is only general advice, and remember that there are losses which do automatically occur as a result of decree absolute, such as widow’s pension where the remaining assets are insufficient to compensate for that loss.

    So you mustn’t rely upon this response, which is intended only as general advice – and you should consult your own solicitor to advise you properly about your own position in law.

    As an aside I just don’t understand why people are so reluctant to do so. Surely it’s worth half on hour of a professional’s time to get the facts? If you wouldn’t pull out your own teeth, diagnose your own illness, mend your own washing machine – why are you so reluctant to find out about your position in law?!

  45. Neil on September 8, 2011 at 6:42 pm

    Marilyn,

    Thank you for the advice, after posting the message i found some information and realised a financial order can be granted in years to come.

    Once the decree absolute is through i will have to attempt to file for a clean break order, i will be seeking advice on this before going down that route..

    The only reason i have not received legal advice so far is i have only had to fill in the petition, after checking the form it all seemed fairly straight forward so i did it myself, also the cost was a factor in this, i did check for solicitors in my area but they were all so much i made a choice to only use them when i really needed to, my “ex”-wife is using a solicitors and getting legal aid for it so i am at a slight disadvantage!

    Thanks again for responding to my query!

  46. Marilyn Stowe on September 8, 2011 at 9:31 pm

    Pleasure and Thank you for thanking me!
    Not everyone does……They must think I’m a robot just sitting here waiting to answer questions…..
    If they saw me today racing down High Holborn Fulwood Place ( my office) Chancery Lane Hare Court Kings Bench Walk Fleet Street …..they might see I’m a busy lawyer!

  47. Neil on September 8, 2011 at 10:01 pm

    I can see you have been responding to questions on this entry for nearly a year now, i’m impressed! I’m sure your advice is always appreciated even if people don’t always thank you!

  48. Carol on September 12, 2011 at 6:15 am

    Hi Marilyn, I am witing on behalf of my Daughter-in-Law,who I have been supporting through her divorce. She got the decree nisi in November 2010, and was advised by her Solicitor to delay the absolute as my Son was declared bankrupt in October, and so financial arrangements were not agreed. She has a daughter aged 20yrs and a son of 18 yrs who are both in full-time education. She has had an order to attend a court hearing on 13th September.She is in the process of changing Solicitors as she has not been happy with the old one. The new Solicitor has only just received the documents, and is away on holiday this week, so has advised my Daughter-in-law to attend the hearing and represent hersellf. We have no contact with my Son, but have found out that his bankruptcy was discharged in March 2010 and no-one informed her. The house has been on the market for nearly 3 years and there is not much equity in it. She is un-employed and receives Job Seekers allowance and Child Tax credits. So financially she is not good. She is actively seekin work. As she is worried about the hearing tomorrow can you give me a bit of advice, to help her through this. The marriage lasted over 20 years and my Son left her in April 2010.Your comments would be appreciated.

  49. Marilyn Stowe on September 12, 2011 at 6:57 am

    Hi Carol
    You don’t say what the hearing is and what your son is applying for. I assume he is seeking the divorce decree to be made absolute before a financial order is in place?
    If so, is there anything your daughter in law would automatically lose if there is decree absolute beforehand? For example your sons pension which may still be intact. Are there automatic widowns benefits under the policy that would no longer go to her if they were to divorce and he to die suddenly? Has he disclosed a pension?
    I’m wondering whether the solicitor advised your daughter in law about the hearing and advised what to do? If not, if it’s important, she could ask for an adjournment until her solicitor has the papers, is back from holiday and up to speed?
    Best wishes
    Marilyn

  50. Anon on September 12, 2011 at 1:06 pm

    You are supporting your ex daughter-in-law against your Son, I think you need to re-assess and get your priorities right. It’s like the son’s going on the radio to slag of their Dad’s for wrong-doing, that is wrong. Family is family. You stand by them no matter what. Even the law recognises that and you can’t be forced to testify against your own family. Strewth.

  51. sally on September 14, 2011 at 6:36 pm

    Hi hope you can help as the situation for us has come to a stand still .My partner of 3 years still has his name on a mortgage with his ex wife. She is living with another partner but despite many attempts by us she does not respond to correspondece from him asking for his name to be removed from the mortgage she also has not responded to his solicitor with regards to the decree absolute. Originally it was agreed that the house should be sold but 18 months ago she took the house off the market even though my partner did not agree to this, and we can get no further information. There are no children between them. Do you have any advice on how we can proceed with this ?

  52. Marilyn Stowe on September 15, 2011 at 9:03 am

    Tell your partner to get some legal advise. If there is a court order then it needs to be enforced and he could apply for an order for sale if his wife is defaulting. If there isn’t a court order then he needs to get one and enforce it. He also can make his own application for Decree Absolute.
    So he needs to get on with it!

  53. paul taylor on December 23, 2011 at 12:40 pm

    me and my x wife , have sorted everything out , but she sends in the paper work for the absolute but wont pay ,twice this has happened , what can i do , 5 years this has taken

  54. shegun on December 24, 2011 at 4:17 am

    please i need your help. i have just a decree NISI with false allegations from my ex-wife. She was violence to me . And that is what i used to apply for stay in UK. But now she used false allegation against me that i behaved to her unreasonably . And the court accept it as i did not contest it, even as i have some genuine proves of what she did to me. But my lawyer was saying they all knew that she just wanted me to be charge. As she lost the non molestation order she first made against me.
    But am a bit scare now as i don’t know how this might affect me when am applying for my applying for british passport next year. Though we have a child together but i don’t want leave with her any more . As her father was sleeping with her and he still want to be sleeping with her. As she get a child for her the same father. I am not even really sure if my daughter is even my biological child. Am on indefinite to live in UK now and i only apply for british passport next year November. But if something like this can still affect my status here in UK. Thank you.

  55. Marilyn Stowe on December 24, 2011 at 12:27 pm

    Paul If she won’t, why don’t you pay the court fee?
    Shegun You need immigration advice. Sorry but I can’t help you.
    Marilyn

  56. Cat on December 29, 2011 at 12:08 pm

    Hi Marilyn
    I hope you’ve had a good Christmas. I have a quick question which I would be so grateful if you could answer- I am remarrying in April, with a wedding booked. However I still need my decree absolute! We have just finalised our financial side & all consent order etc are signed by both parties. The decree nisi was 15 months ago as it has all gone so slowly (husband simply dragging feet.) Is getting an absolute now just a case of taking £45 & a form to court- how long will it take? I’ve heard it can be issued the same day? Will I have to include an affidavit-what should this say? I’m getting very nervous as the wedding date approaches! I would be most grateful for your advice.

  57. Marilyn Stowe on December 29, 2011 at 4:24 pm

    Cat
    When you are applying for decree absolute more than 12 months after decree nisi you need to send a letter and possibly a statement of truth to the court with the application and cheque.
    You need to explain why you haven’t applied earlier, whether you have lived together since decree nisi and whether any child has been born to either of you and if so whether the child is a child of the family.
    Click the following link for more information:-
    http://hmctscourtfinder.justice.gov.uk/courtfinder/forms/d187_e.pdf
    Best wishes,
    Marilyn

  58. Cat on December 30, 2011 at 12:43 am

    Thanks Marilyn I really appreciate your help & the link.

  59. Marie on December 31, 2011 at 12:42 am

    Hi, I wonder if you can please help me to put my mind at rest a little. I have received my decree nisi and the decree absolute is due to be applied for on 12th Jan 2012. My husband was supposed to sign the managed consent order, which he’d agreed on the figures for, however has now been to see a solicitor and refuses to speak to me about what the solicitor has said. The house was bought in my sole name, but whilst we were married, in France. My two questions are a) is it possible that his solicitor may be able to postpone the decree absolute being granted on the basis that my husband is not satisfied with some part of the financial arrangement, b) is it possible he would be able to claim for part of my house? I live here with my 2 children (not his). We had both agreed to go our separate ways and to not to claim for anything from one another. The decree nisi was issued due to a breakdown in our marriage and his violent and aggressive domestic and sexual nature.

  60. Marilyn Stowe on December 31, 2011 at 10:20 am

    Hi Marie
    I can’t advise you without further information. I would suggest you arrange to see a solicitor and take advice. English law does not have a community property regime whereby property is simply divided up. The court will consider all the assets of the parties, both income and capital and then apply the factors of section 25 Matrimonial Causes Act 1973. In deciding the order to make, the court will particularly take into account the needs of the children.
    Don’t panic, the court will make a fair order and it may be you can argue the agreement you have already reached is fair in all the circumstances eg if you are not seeking any income for you and the children who I suspect will still be treated as children of the family by the courts, even though they are not his. You do need some specific legal advice.
    As for Decree Absolute if you are the petitioner you can apply notwithstanding the finances, but again take legal advice before you do. If you are the respondent you have to wait a further twelve weeks after January 12 before you may apply.
    Best wishes
    Marilyn

  61. Anganie on January 10, 2012 at 5:07 pm

    Hi Marilyn, I am the respondent, my husband is the petitioner, the decree nisi was granted on 7th February 2011, he has now applied for the decree absolute, our hearing date is in April 2012, could you please give me a little info on what my rights are in terms of financial settlement if I am entitled to any?? Thanks

  62. anna on January 19, 2012 at 10:44 am

    hi Marilyn..
    The petitioner was anxious to filem proceedings against me, even placed an advert in the paper. finally I conceded and did not challenged his petition and out nisi was granted six weeks ago..so an application for final decree should be filed now.. I was certain he would apply for the decree, he has a child now and a` live in girlfriend. After the mental anguish and heartache he put me through these last few months, I wanted this absolute to put closure to the matter. Now he is saying that his instructed his solicitor to file and there is no proof of this when I checked at the Family Court.. Ive written to his lawyer and himself and no response, why is he backsliding now? I dont think its emotional reasons at all. He despises me and further to that, all financial issues between us were settled.. bearing in mind that he is cohabiting with his partner and child, can I ask the court to compel him in some way to give me the absolute.. Its been dragging on for too long !

  63. Chris on January 20, 2012 at 9:14 pm

    Hi Marilyn,

    My decree nisi was issued in March2011 our case went to court in Dec and all financials are sorted out.It was agreed that the house be sold and she got 25 per cent of my pension.In order for her to claim my pension the decree absolute must be issued.How long do i have to wait its been 30 days now and i have not heard anything.
    Can she still not apply for the absolute and delay this even further or does she now have to issue it.Please help as its been 2 years now since we split and i want an end to this now.
    Kind regards
    Chris

  64. Marilyn Stowe on January 23, 2012 at 12:02 pm

    Chris and Anna,
    A Decree Absolute can be obtained by the Petitioner six weeks and a day after the Decree Nisi was pronounced.
    If the Petitioner does not apply, you can do so by making an application three months later.
    A financial order cannot be implemented without Decree Absolute so there is an incentive to do so.
    I hope this helps both of you,
    Best wishes
    Marilyn

  65. Chris on January 23, 2012 at 8:50 pm

    Fantastic news Marilyn many thanks for your time does that also mean the house be sold as soon as possible or can she delay that as well ?

  66. Family Law Student on January 24, 2012 at 5:39 pm

    Hi Marilyn,

    Can I firstly commend you on what a tremendious response you have had to this article. Surely an achievement in itself!!
    Secondly, in terms of family practitioners and the advice you (or another legal professional) would provide to your clients. Apart from pension provisions (as a result of death) and other provision should one of the partners die. Is there any other considerations practitioners should advise their client of i.e the standard procedure is to wait for a final order from the Court after which you would apply for the DA yourself (if you were representing the petitioner)

    Your help would be appreciated

    Many thanks

    Family Law Student

  67. Marilyn Stowe on January 26, 2012 at 2:20 pm

    Dear Family Law Student
    Because you are a family law student my answer is rather more technical:-
    Have you read the case thoroughly? Have you also read ss8-10a Matrimonial Causes Act 1973 to which I referred in my post and all of which refer to this topic.
    Note the inherent jurisdiction in the court to delay DA, but also note that the reason for delay must be exceptional.
    In practice,cases arising under ss8-10a MCA 1973 may be other reasons to delay applying for DA.
    If for example we are instructed in a Jewish divorce, we may need to postpone DA until after a “Get” has been given.
    Hope this helps.
    Marilyn

  68. Ann on January 27, 2012 at 8:11 pm

    I received my decree nisi in Dec of 2006 and returned home to Canada at that time. I am the Petitioner but did not apply for the Decree Absolute and in fact, thought the Respondent would apply after 4 months. It is now more than 5 years later and I want this marriage finally dissolved. There are no financial issues nor were there any children involved. I have not had any contact with the Respondent since 2007 and I plan to remain in Cananda. How difficult will it be for me to acquire the Decree Absolute?

  69. Marilyn Stowe on January 27, 2012 at 8:27 pm

    Dear Ann
    First are you certain there has been no decree absolute? Check with the court. Just because you haven’t received it, doesnt mean it hasn’t happened.
    If not then the following is the relevant link:-
    http://hmctscourtfinder.justice.gov.uk/courtfinder/forms/d187_e.pdf
    You may also need to file a Statement of Truth verifying the position, again I suggest you check with the relevant court.
    Regards
    Marilyn

  70. Paul on February 15, 2012 at 7:14 pm

    Marilyn.

    My daughter has just been granted a decree absolute. Neither we nor or solicitors were able to trace her husband. A couple of days after the absolute was granted she received a letter from the CSA offering condolences on the death of her husband and closing the CSA account (not that he actually paid anything). He died before the nisi was granted.
    Her solicitor says she is divorced. A work colleague is married to a solicitor dealing with matromonial issues and he has said that my daughter is widowed as you cannot divorce a dead man.
    I see a note above saying you cannot divorce a dead person in English law. Would you say that my daughter is divorced or widowed?
    Many thanks in advance if you find the time to answer.

  71. Marilyn Stowe on February 16, 2012 at 10:02 am

    Hi Paul
    I agree. I think she was widowed prior to Decree Absolute and therefore I think the Decree Absilute was issued in error and she should apply to have the decree absolute rescinded.
    This situation may well affect her entitlements as a widow. She needs to check them out.
    Regards
    Marilyn

  72. Paul on February 17, 2012 at 12:07 am

    Marilyn.

    Thank you for putting our minds at rest. That makes it 2 -1 to widow, we will get her to contact the DWP to check entitlements.

    Paul

  73. mj on February 21, 2012 at 10:30 pm

    hi marilyn,
    i received my decree nisi in november 2011 with a view to apply for the absolute on january 5th but my solictor then told me i have to wait for his financial discloser and consent orderto be be returned?? before she can apply for the absolute, my ex still has returned this to her, i have already told her i do not wish to claim anything from him (he complains about giving me £78 pm csa so i cant see me or my 2 boys getting anything else from him) but she insists she needs this discloser/consent order to be sent with the applicatin for DA is this absolutly nessacery , we were separated 2yrs ago , i am now with a new partner and we wish to marry but obviously the DA is holding it up what do you sugest please

  74. jay on February 23, 2012 at 10:40 am

    hi marilyn,

    i have found all your comments very useful. just a quick question..I am the respondent, i am waiting for my ex to apply for the absolute, we have already received nisi. she has not yet done this and i understand i can apply after 3 months but need to send affidavit with form? in your experience after how long from submitting paperwork in cases such as mine does it take for absolute to be granted? i understand there has to be a hearing? also does it have to be 3 months or 12 weeks from day of nisi? as for me this changes the time i can apply by approx a week. many thanks

  75. Chrissy on February 23, 2012 at 1:15 pm

    Hi Marilyn

    I am the petitioner in my divorce and have received a decree nisi but my husbands solicitor has requested I delay applying for the absolute until the fincances have been resolved.
    I don’t beleive there is any advantage to either of us by doing this and just want the divorce final. Can I still go for the absolute or can he prevent me from doing so?
    We have a house with no equity which I live in with my child (and have paid for since our split), I have one mediocre pension and took on the joint debt whilst he has several generous pensions so am unsure as to why we are even discussing the finances.
    Thanks for any advice

  76. Marilyn Stowe on February 26, 2012 at 6:28 pm

    Jay
    Scroll up to the answer I gave Ann on 27 Jan and follow the link to Form D187. It should give you all the info you require.
    Best wishes
    Marilyn

  77. Marilyn Stowe on February 26, 2012 at 6:30 pm

    Chrissy
    I don’t know about your financial circumstances but if your husband were to predecease you before a financial order is in place then you could lose out on widows benefits under the various pensions you mention.
    I think you need to discuss the options with your solicitor and decide then.
    Best wishes
    Marilyn

  78. Marilyn Stowe on February 26, 2012 at 6:34 pm

    MJ
    I’m not clear about what you are saying in your message. Generally it’s wise if a solicitor gives advice which is in your best interests to take it.
    However you are the client. If after taking advice you decide to reject it then you are entitled to do. Your solicitor might want you to sign a disclaimer to confirm you aren’t gong to sue if it turns out to be a bad move.
    Best wishes
    Marilyn

  79. AD on February 26, 2012 at 7:25 pm

    Hi Marilyn,
    Thanks for your excellent blog – i’ve got answers to quite a few questions I had. I wonder if you could give me advice on this one: I recently bought a house with my partner, as tenants in common with a deed of trust to specify 45/55% each me/him. We also made wills stating that if either died their half would go to the other. However, he is still married. He has been trying to get divorced for two and half years, but his wife keeps stalling. He has a decree nisi in place but that’s it. There have been many different consent orders written and rejected by both. He has until recently been paying her £650/month for his three children (aged 5, 12 and 13) and £150 a month for herself (the latter that was supposed to be for only three years). But last month he was made redundant with little immediate hope of finding work. She has kept their marital home and he has agreed to give it to her as part of their settlement, whilst he keeps the savings, amounting to about a 60/40 split in her favour, although at the moment none of that has been legally agreed. I am worried about my own position, since if he died i’m concerned that his wife could contest the will about our house since she has always been financially dependant upon him and has three children. I would be grateful for any advice. Obviously I have no solicitor as it is not ‘my’ divorce, but his.
    With thanks,
    AD

  80. ZD on February 27, 2012 at 1:28 pm

    Hi Marilyn, I am at the stage of Decree Nisi but wife will not complete papers for a financial settlement – however, since she has only debts and a small pension I am happy to walk away with nothing from her. I have also asked for a Clean Break agreement but she will not reply to any letters. Other than by paying large some of money to try and get her to Court which I understand she cannot be compelled to attend – is there any way to get the financial matters finalised? – or do I have to live for ever and a day wondering if she is going to come back asking for money? There are no children from the marriage. Many thanks

  81. Marilyn Stowe on February 27, 2012 at 2:16 pm

    AD
    You are right to be concerned. Your partner’s wife could certainly look to his share of the property to deal with her needs and those of the children. The court will have to do the balancing act I have written about elsewhere on this blog. Perhaps you should look again at the deed of trust and seek trust law advice on it.
    I think you also urgently need to ensure he ‘gets on with it’. He needs a settlement in place and he also needs life insurance which will cover his ongoing commitments to wife and children and mean that the house he intends to pass to you will do so. Remember if you arent married when he is able to marry, there may be Inheritance Tax issues between you in the event of his death.
    Its a morbid subject and unlikely to occur but you are right to worry particularly as you are investing in the property.
    Marilyn

  82. Marilyn Stowe on February 27, 2012 at 2:21 pm

    ZD
    You could apply to the court by issuing a Form A to get the process started and seeking a dismissal of each party’s claims against the other. Your wife does not need to attend court for an order to be made against her and therefore that seems to be the way forward. She could also potentially be liable for costs if the court considers her behaviour to have been cost incurring and unreasonable. However, a note of caution. Whilst I note you want nothing from her, are you sure she will want nothing from you?
    Take legal advice on the entire situation first before acting but I agree it is a situation which does need sorting out.
    Marilyn

  83. AB on March 2, 2012 at 6:51 pm

    My ex wife and I have been separated since 2007 and she applied for divorce last year. My exwife received decree nisi in december 2011 with a view to apply for the absolute on january 2012 but her solictor then told her to wait for till we agree on the financial arrangement. I have cleary stated in the Statement of Arrangement for Children that she and our children will continue to live in our former matrimonial home while I continue to pay half the mortgage. Once the economy is better, we may sell the house and she will be entitle to half of the value of the property. At the meantime I will continue to provide her the monthly allowance/maintenance for her and our two children. I’m currently paying GBP1253 a month (for mortgage & allowance for 2 children). She is reluctant to apply for decree absolute thinking that she can get more money out of me. I’m a contractor working for a private security company which from time to time I do not have income; however I am making a firm commitment that I will continue the current arrangement. My weekly incomes fluctuate from time to time it may range from GBP 0 to 2000.
    Will the court turn down my application for decree absolute if I apply for it after the 4.5 months wait ? Will my ex-wife able to stop me from the application of decree absolute ?

    with thanks,
    AB

  84. Marilyn Stowe on March 3, 2012 at 10:57 am

    AB
    It isn’t about the overall financial settlement. It’s about what she might lose that would not be recoverable out of the financial pot if you were to die before a settlement is in place. She would not be your widow, so any widows benefits that are automatically payable say out of your pension entitlements would be lost.
    If such a potential loss is relatively low and could be covered then your application should succeed.
    Please read what the judge said in the decision above.
    Marilyn

  85. Maya on March 3, 2012 at 5:47 pm

    I am the petitioner and have been trying to reach a settlement agreement for over 6 months now. My STBX has held up progress by providing a grossly deficient Form E and refusing to respond to the questionnaires issued by my solicitor. STBX claims to have filed a Form A and I was wondering if there is any advantage to being first to file. Thanks.

  86. Marilyn Stowe on March 3, 2012 at 5:56 pm

    Maya
    This type of quesion is hugely frustrating! I would certainly have taken instuctions on the facts and am pretty sure I would have advised you to issue your Form A from the outset. You are an example of delay, a naive attempt to resolve ‘amicably’ and no doubt wasted costs.
    Stop waiting. Issue.
    Marilyn

  87. CHRIS on March 6, 2012 at 10:00 pm

    I wish I found you two years ago, you have help me more then my solicitor has, Thank-you for the info

  88. Hurt soul on March 9, 2012 at 12:36 pm

    i had a very short marriage , not even 2 years. he was abusive and it was a arranged marriage. I filed a divorce under unreasonable behaviour. I already got decree nisi and my dates are completed to apply decree absolute, however cannot apply for it as my ex hasn’t signed of no financial claim forms. The judge has already ordered him to pay for teh cost involved for divorce even before i mentioned. Now he is delaying it purposely and not returningt he signed forms. I want to know whether I can still apply for my decree absolute? is it possible for him to ignore judge order to pay? what is my next step? im so horrified with all this and mentally tortured… please helppppp

  89. Marilyn Stowe on March 9, 2012 at 12:54 pm

    ‘Hurt Soul’
    This blog post is all about the major difference which exists in English law, between getting divorced and getting a financial settlement. There is nothing to stop you getting your Decree Absolute if you wish. All you do is fill in the form and lodge it at court with the fee.
    If however you are seeking a financial settlement then you need advise about whether you might be better off waiting until it is in place because you might otherwise lose out on automatic spousal benefits in the event he dies beforehand.
    The best thing for you, and I mean this with the very best of intentions, is to stop calling yourself “Hurt Soul” and take some good legal advice which should then defintively sort the problem out for you.
    Marilyn

  90. Hurt soul on March 9, 2012 at 1:35 pm

    Thanks for the advice. I have a lawyer but for some rason i feel that I am not getting it. my lawyer says to wait but i do not have time as for 2 years now its been dragged, the whole divorce proceedings.. no enrgey anymore. thanks

  91. Hurt soul on March 9, 2012 at 2:43 pm

    obtw i live in UK and divorce in UK

  92. AD on March 9, 2012 at 5:56 pm

    Dear Marilyn,
    Thanks so very much for your advice. Thanks to your advice about getting my partner to ‘get on with it’ he now has a decree absolute in place. I do notice on his consent order, which is currently being rewritten again, that he has to pay his wife £1 a month until his youngest son is 18 (in 2025) and that there’s a clause that says after that date she won’t be able to make any claim on his estate after he dies. Does that mean that before that date she could? We took your advice on making sure life insurance was in place to protect me in case his wife did contest his will. Once again, many, many thanks for your excellent advice. It made a quick and effective difference to his divorce.

  93. Marilyn Stowe on March 10, 2012 at 8:23 am

    AD
    Thanks very much. If it’s agreed that Inheritance claims are only extinguished when the youngest child is 18 then perhaps you should add a clause that the claim is limited only to the sums he is paying under the order at the date of death. Thus if he is only paying nominal maintenance, your partner is not faced with a claim for anything more from his ex wife.
    Obviously I don’t know the details but it’s something he might like to discuss with his solicitor.
    Regards
    Marilyn

  94. Claire T on March 15, 2012 at 5:50 pm

    Dear Marilyn,

    Can you advise me. I have my Decree Nisi granted in 2011 but did not finalise as we tried for a while to get back together. It did not work out and I find myself at the same place I was before after initial seperation. My question is we have no finacial arrangements in place and although all verbal with my ex, he pays half the currect mortgage and £70 per week towards our two children. Can I finalise the divorce within finacial agreement? Do I need to visit a solictor to do this? The first part of divorce cost me £1800 so far. I have been made redundant and have no money but realise the longer i leave it I may be entitled to less finacially award as our eldest child has just turned 18 and our youngest 8 years old. I really dont know what to do for the best interests for myself and my children. I am scared to upset my ex as he could turn nasty and demand we sell the house. We do not want to upset things. Please can you help me?

  95. SG on March 16, 2012 at 12:27 pm

    Hi
    I am the petitioner in my divorce and I have a decree nisi, it was granted on 27 January 2012. I have not yet applied for decree absolute. Am I still legally married until I apply for it? Or am I now divorced because the 6 weeks and 1 day have passed? Thanks

    1. Marilyn Stowe on March 16, 2012 at 12:36 pm

      SG
      You are not yet divorced. You have a decree NISI, which means “unless”. The six week period gives you the chance to change your mind. As you clearly have not changed your mind then you should apply to the Court for your decree to be made absolute. There is a fee to pay of £45. You will receive a Certificate with the court stamp on it, and should keep it safe because you may need to produce it to prove the dissolution of your marriae in the future, say if you wish to remarry.
      Keep a note of the Court matter number on the certificate, because sometimes people mislay the certificate and then years later need to obtain another sealed copy from the court. That will help trace the file.
      Best wishes
      Marilyn

  96. Marilyn Stowe on March 16, 2012 at 12:42 pm

    Claire T
    I think you could be eligible for legal aid so I would advise a trip to the solicitor to find out your situation both in terms of a financial settlement and legal aid.
    As I have written many times, there is no connection between getting divorced and obtaining a financial settlement. Its just that sometimes its better to wait if there are benefits you would automatically lose if you were divorced and your spouse were to die before a settlement is in place.
    Your solicitor will advise you, but dont delay take advise.
    Best wishes
    Marilyn

  97. Lee on March 16, 2012 at 6:07 pm

    Hi Marilyn, I have just petitioned for a decree nisi. This is not being contested by my ex (we get on well) and we have agreed our finances and arrangements for children between us and will hopefully achieve decree absolute without difficulty. I want us both to be able to start our lives again following that, and importantly want to rebuild our finances without any fear of claim later in life…do we need something formal put in place and if so in what form will that be? (we have a dually signed financial settlemt agreement which we did indepently ourselves).

  98. Marilyn Stowe on March 16, 2012 at 8:16 pm

    Lee
    You need a Court order, made by consent which records your agreement and closes off both parties claims against the other permanently.This could best be drafted by a solicitor who is used to the terminology and is aware of the potential loopholes.
    To make sure it’s all done correctly, you will each need a lawyer to advise you both independently and make sure you understand and agree the deal, draft the proposed order between them, then it is signed by both parties,and together with the form giving the necessary financial disclosure by both of you and the court fee, it is lodged with the court for the order to be made. If the Judge has any queries he will raise them. Usually there aren’t any because the lawyers have anticipated and dealt with the possible queries. The order is made, and sealed copies are sent to both parties. When the order is made, all claims are dismissed.
    Regards
    Marilyn

  99. Zoe on March 18, 2012 at 9:00 pm

    Hi Marilyn
    There was no house to sell we rented, the kids are of age so not dependent. After expenses, mainly his, whatever was left in his pot (he was main earner I’ve just returned p/t after looking after the kids and home) was split 50/50 from his account (no idea if he has cash stashed elsewhere). We went our separate ways after the nisi and he paid me my half (I was reluctant to leave without it in case it got spent by him). This was all agreed verbally between us, divorce done using online forms.

    Now he is demanding we go to court together on the absolute day or if I don’t he thinks I’m going back on our agreement to get more. I’m not just don’t see the hurry to do it on the exact day. He says he will take legal advice and not to spend the money he has given me as he will get it back, and I will be worse off.

    Why is he rushing to get the absolute? Can he get the money back? no full and final form has been done yet, when we do it do we put what we had when we split the money, or do we put what we have now which would mean he has less than me. What would the implications of that be to me, could I be made to give him money.

    Cheers
    Zoe

  100. Marilyn Stowe on March 19, 2012 at 10:31 am

    Zoe
    There isnt a “formal” Decree Absolute day. All that happens is that the signed application and cheque are handed into the court office. So I suspect he is as little clued up as you and probably thinks, wrongly, that financial claims are dismissed when a Decree Absolute is issued.
    Given that may be the case, you have to wonder why the hurry….take a trip to your local family lawyers and ask for some more information on your financial situation and entitlements.
    And no, I dont think he can claim the money back from you. Perhaps Im a cynic, it seems suspicious…..
    Best wishes
    Marilyn

  101. Nigel on March 20, 2012 at 5:10 pm

    If the Respondent applies to appeal the Financial Order and also requests a Decree Absolute, because he claims to be getting married, is the Judge likely to delay the Decree Absolute until the Appeal has been accepted or rejected, or allow it? Is the Applicant’s position at risk given that the Appeal could be accepted after the Decree Absolute?

  102. Marilyn Stowe on March 20, 2012 at 9:32 pm

    Nigel
    The answer to your question depends entirely on the facts, and you give none, so I can’t answer you.
    The lawyers who are involved in this case are much better placed than I am to give an opinion.
    Very sorry!
    Marilyn

  103. John on March 20, 2012 at 11:02 pm

    Hi Marilyn (great site)

    I received a copy of my (Petitioner/Applicant) Decree Nisi and D36 on or about 07 July 2011. On 04/ Aug 2011 I signed the D36 and wrote a cheque for the said amount to the court £45.00 p. On the 08 Aug 2011 I went to the Law Courts and handed in my documents the court staff took them, and have mist placed them, un known to me or the responded, my ex wife, time past and on the 14th February 2012 I received in the post a application for a hearing for the 20th March 2012 from her solicitors saying I had not returned the D36 and that they said “ the petitioner (me) has so far not applied for the Decree Nisi to be made absolute, and the court respectfully asked to grant leave for the Decree Nisi granted against Respondent to be made absolute”. I retuned to court with the current application and asked questions at the clerk’s desk and informed them of events, I was instructed by them to come to court today (20th March 2012) and provide my evidence to the facts. The bank has confirm to me that the said Chq has not been presented, To day at the court I was ordered to make costing of £90 and she has got the absolute, the judge would not take in to account that in fact the court had miss placed the CHQ and D36, 10. With all respect to the court, as I have fulfilled my entire legal requirements under English law in the said time, and that the court system has failed in its/their duties. I can not be held responsible surly.? I requested to the court today with respect, that my application was just and served rightly and that my application continues today and that my application is made absolute in my favor. But it did not it went in her favor, Q: does that mean that my wife has now divorced me?

    1. Marilyn Stowe on March 21, 2012 at 8:43 am

      John
      You are divorced. If you were the person who petitioned it’s your divorce petition that has been made absolute. I’m sorry to read what happened at court. You could take it further by complaining to the court but I doubt you would get anywhere as you have no demonstrable proof.
      Thanks for your comments.
      Marilyn

  104. Nigel on March 21, 2012 at 11:58 am

    Hi Marilyn
    If the tenancy has been split by the Applicant just immediately following the marriage breakdown when the Applicant left the property, and now the Applicant wishes to remove the Respondent from the property (owing to obstructing the sale) does the Respondent have any rights to remain. ie, can the Respondent be evicted by the Family Courts when there is a split tenancy?
    Many thanks

  105. Marilyn Stowe on March 21, 2012 at 12:17 pm

    Nigel
    Yes he can still be ordered to leave. Severance does not affect ownership, or the right of one party to apply for an order for sale or possession, it simply means that each person’s share no longer automatically passes to the other on death.
    The court retains the right to make a transfer of property order in favour of either party on divorce and an order a sale.
    Best wishes
    Marilyn

  106. Anne on March 22, 2012 at 2:12 am

    He was officially divorced last December i.e the decree absolute, both he and his ex-wife have been given the official paperwork confirming the divorce as legal and valid. The problem we are now dealing with is the financial settlement, originally he offered a separation settlement of £10k soon after she left the martial home, she refused demanding more and an obscene amount for child maintenance for the daughter. He told her to go through the proper route of the CSA turned out as he was a full-time student he didn’t have to pay however being the man he is he pays the full amount (he works and does a course) monthly. He proceeded with the financial settlement in Jan has submitted all of his accounts, assets, valuation on the house plus his pension, the problem is she’s only supplied some of her info and there was a transaction of a large sum £4.5 which was transferred from her account to her sisters last year which she refuses to explain plus there are missing accounts/pension amounts. There has been no response to the last solicitor letter requesting her remaining info, instead we had a letter from a mediation company requesting a meeting? She’s currently on legal aid so I’m assuming they’ve just passed this through the normal channels as they don’t deal with financial disputes? Where does this leave my partner? It took 12 months for the divorce to go through as she delayed it by not filling in paperwork correctly, claiming mental illness then retracting that, ignoring letters/requests, finally the judge replied saying the paperwork had been signed and changing her mind so late wasn’t an adequate reason for stopping the divorce procedure, so if it’s going through mediation now where does that leave my partner if she continues to ignore letters and not submit her financial information? He’s been quite willing to still give the £10k straight into her pension to save her loosing her benefits or get taxed but she wants more, this amount she would get anyway once the house has been divided, the assets/pensions split so I don’t she why she’s demanding more? Any advice please?

    Many Thanks!

  107. EN on March 29, 2012 at 5:18 pm

    Hi there.my ex wife filed for divorce last april and we have gonne throught till decree nisi which was granted in october.now she is notvapplying for absolute because she wants a clean break and wants to claim our house and put a 10.000 pounds for me ta pay for renovation she says.if i apply for absolute myself will they grant that and can she delay the proces.thanx

  108. Guy on April 1, 2012 at 7:49 am

    Hello,

    My wife said she has just spoken to a solicitor to start divorce against me, which is horrible not least because we have two young sons aged 10 and 11.
    I would like someone to tell me if it is possible for me to delay the inevitable by simply doing nothing for as long as possible?
    Some friends told me that when I get letters from her solicitor if I don’t reply or do anything at all, there is nothing that can be done for about 2 years.
    For the sakes of my kids I would like to pursue this, but I need to know if I am actually able to do it. I realise it is delaying the inevitable, but that delay is actually very important.
    If anyone can give me an accurate reply I should be most grateful, and thanks in advance.
    Oh, and to the rest of you out there suffering the pain of a broken relationship as well, my heart stands with you.
    Thank you.
    Guy

  109. Marilyn Stowe on April 2, 2012 at 11:45 am

    Guy
    What you write is very common with people who find themselves facing a divorce they dont want. Your wife has had time to think and decide what she wants to do. She has consulted solicitors. You havent got to that point and clearly want to save the marriage.You are obviously and understandably deeply upset and emotional.
    Have you both tried counselling or family therapy? If not then it will need your wife to agree and it might work but if she is dead set on a divorce then she wont agree and will proceed on.
    If there is no alternative and your wife is certain in her mind that the marriage is over then it will be up to you too to come to terms with her decision. You may need some counselling just for yourself. You may need to see your GP.
    You need to think of your children, and how best to deal with them. Instead of being in denial you will need to put them first, dont play a blame game and both of you need to parent your children and help them through this very difficult period.
    You need to agree how the children are going to be parented in the future, and where you are all going to live and how this is going to be afforded. You should take immediate legal advice.
    What you propose ie putting your head in the sand, will not work. I doubt it will delay a divorce and could end up costing you a lot of money that you would not otherwise have to pay.
    Life can be very tough but life happens to everyone, noone is exempt from bad things and usually bad things happen when theyre not expecting it. There’s no point asking “why me?” instead you will be far better served by taking life on the chin and dealing with it as best you can, not least for your children.
    Best wishes
    Marilyn.

  110. Guy on April 2, 2012 at 2:56 pm

    Dear Marilyn,

    Very many thanks for answering my post, I am exceedingly grateful for your time.

    We have already tried Relate but she has made her mind up and just keeps saying she wants the house and the kids. The thought of losing them too is just awful.

    I’m currently awaiting to receive a letter from her solicitor, and when I get that I suppose I shall have to engage one myself to help me out.

    As for a GP I have told him what’s going on just so he knows, but am reluctant to seek any help over the stress this is causing because I am fearful a court might see me as somehow unfit if I have had to have a doctor’s help. I actually feel mentally strong but the strain is immense, I don’t mind admitting.

    Well, I won’t bog you down with the intricacies but if you think there is no merit in delaying, then I guess that’s that then. Both kids are adamant they wish to live with me so I only hope any court would take this into consideration, plus the fact my wife is always out and leaves me to care for them much of the time.

    Marilyn, my gracious thanks to you for your valuable time and opinion which I shall take away and digest. I look forward to the days beyond this nightmare when I can hopefully find peace and love from someone else.

    Thanks again, you’re a gem for helping people like this.

    Guy

  111. Marilyn Stowe on April 2, 2012 at 3:31 pm

    Guy
    My pleasure. Take some very good legal advice, focus on what you want, within the context of the facts and law and don’t be despondent. Use the facts and the law to your advantage. Sometimes husbands forget they have their own needs to consider and a vital role to play in their children’s lives. You count too.
    The first issue must be a parenting agreement about residence and contact given what you write. You might do this by negotiation, or by family therapy or mediation before applying to the court. You might agree a joint residence order and how time is to be shared between you.
    Both of you will have to ensure that your respective proposals are in the best interests of the children which means also encouraging a relationship with the other parent so that the childrens bond with the other parent is not broken.
    Be practical and flexible and see how that goes
    Then I would suggest you deal with the finances.
    Your own solicitor with all the facts will advise you. This can only be a general guide.
    However I’m going to wrote a post following on from your comments and it will be up shortly.
    Best wishes
    Marilyn

  112. JamesB on April 4, 2012 at 8:56 pm

    Guy,
    Whatever happens do not move out of the house, and try to stay away from her to stop her fabricating an injunction to get you out and have the house and kids / have a witness around, as that is what her amoral solicitor will advise.
    Yes, children’s wishes are paramount, a glimmer of light for you.
    Oh last thing, councelling worked and saved me a fortune – speaking with councillor rather than solicitor is far cheaper, do not allow ex to realise you go as will use it against you. Now it becomes very messy, despite what Marilyn says.
    Best wishes.

  113. JamesB on April 4, 2012 at 8:57 pm

    Councelling also kept me sane in the difficult time back then for me.

  114. Marilyn Stowe on April 4, 2012 at 9:08 pm

    James B
    For once we aren’t too far apart. Note I refer to counselling and strategising but I also suggest staying calm rational and commercial. A good lawyer will help not hinder.
    In fact I was so interested and concerned by Guy my latest post focusses on him.
    Marilyn

  115. Rachel on April 4, 2012 at 9:35 pm

    Guy,

    I was moved by your words.

    I found myself forced to take action after my husband committed adultery. I tried everything to save my marriage as I did not want my daughter to come from a broken home. Eventually I had to accept the marriage was over and take the bull by the horns and take legal advice. My husband wanted a divorce but did not want the financial repercussions and he tried very hard to stretch things out and not cooperate. This just added to the stress and acrimony and the legal costs. Please don’t stick your head in the sand, it would be counter productive for both of you. The divorce process is extremely painful, particularly for the party who doesn’t want it, but you will find the strength to see it through to the, hopefully, not too bitter end.

  116. JamesB on April 5, 2012 at 9:40 am

    I meant to post this here.

    JamesB on April 4, 2012 at 9:06 pm
    keeps u sane and from alienating others and yourself not involved with your talk on the subject also.

    JamesB on April 4, 2012 at 9:07 pm
    last point, in divorce in this country, the money follows the children, thus the reason why you should petition your wife now rather than wait for her to do it and get more in 8 to 10 years time.

    I also add that a trip to an average, cheap, lawyer might be a good idea.

  117. JamesB on April 5, 2012 at 9:44 am

    I also add that a trip to an average, cheap, lawyer might be a good idea, to set the ball rolling.

    Threatening someone with divorce is unreasonable behaviour, indeed anything is these days and if someone says they want a divorce then usually there is no way back (although Zoe Ball and Norman Cook do confuse me and break that rule).

  118. JamesB on April 5, 2012 at 9:44 am

    You need to divorce her asap.

  119. armie on April 5, 2012 at 7:26 pm

    Hi! I am physically separated from my husband for 1 year and 3 months…I wish to file the divorce but my ex husband is homeless and jobless at the moment…i was told that I need his address for him to receive the papers..we got married overseas..we’re both British citizen…our children age 19 and 14 lives with me and I am not receiving any child support for my 14 year old child. I managed to remove his name from our mortgage but we still both owe a portion of land from the country where we came from…I want to divorce him urgently as his behaviour were unreasonable. I don’t have enough money to spend for my divorce as I am the sole provider for my children. Will I be able to file the divorce even though he doesn’t have a permanent address?
    kind regards

  120. Guy on April 7, 2012 at 9:48 am

    To James and Rachel,

    Just wanted to say thank you for taking the trouble to post your comments, which is very good of you.
    It’s the Bank Holiday weekend right now so I am unable to get to a solicitor myself until next week, but I was interested to hear from someone I know that a good friend of theirs refused to respond and managed years of delay by doing nothing.
    I wish I could get a simple answer to this .. can I legally delay by doing nothing without prejudice to myself and my desire to keep my kids. Maybe I’m looking at it too simply, maybe it’s not as black and white as that, but if it is I would love to know.
    These friends said the time which starts when the respondant makes their first defence to the day a divorce is granted only starts when the respondant makes that initial move. In simple terms, if I don’t respond, the time doesn’t start. I am trying to find an accurate answer to this. My friends are adamant this is what happened, and whilst I have no reason to dispute them, I think it would sit better if I knew I had some legal right to actually do this.
    Obviously I don’t want to do anything that will completely ruin it all for me.
    Nonetheless, for your consideration in repying I am most touched and grateful, it is some comfort to be able to be in contact with others who have experienced this unpleasant moment of life. Thanks also again to Marilyn, without whom so many of us would have less help/hope.

    Have a lovely weekend everyone.

    Guy

  121. Stephen on April 7, 2012 at 1:55 pm

    Ive been separated. Since October 2008 I have done and completed ancillary relief and we have our own mortgages n homes. I applied for divorce back nov,2011 got to decree nisi this week 5th april 2012 only for my to petion it on the grounds of her emotionally well being….the court have honoured her plea she is a senior prizon officer and is still working as I have our son when she is at work… how can she stop this when clearly she isn’t emotionally unstable and all ive ever wanted is tobe divorced from her weve been separated lonbger than we were married. She has made my life hell because I have a partner now who she knows I want to marry. I have cancer and if anyone should emotionally issues that should be me and my partner. How can we get the court to see she is lying yet again and get this moving to absolute stage.

  122. JamesB on April 8, 2012 at 11:17 pm

    If you don’t reply she will have to ‘serve’ you. which doesn’t take much effort and will annoy everyone concerned. To do this she gets someone to knock on your door and hand you the papers or a recorded signature, thne if no reply you lose the case anyway, complete waste of time. But you r not listening. Why be married to her if she doesn’t love you? THAT makes no sense.

  123. PBMC on April 12, 2012 at 7:44 pm

    Hi Marilyn
    i am due to apply for absolute in 2 weeks. From the beginning of the divorce process my ex husband has been ameniable and agreed verbally that we would walk away with whatever assets we have (mainly pension assets as far as i know). There is no property or children to consider. i applied for a clean break order and now he is delaying giving me the financial information for the order to be completed and presented at court.
    Can i present the clean break order without his information and signature, with a covering letter explaining why the information is missing?
    Many thanks

  124. Maria on April 18, 2012 at 10:00 am

    Hi Marilyn,
    I am in the stage of decree nisi, we have two children, and Iam living in the family home with with the two of them, my ex have left me, and I have one meeting with mediation so far, my lawyer has told me that we are separated now and entitled to see some one else, is that possible at this stage of the divorce? Thank you very much.

  125. Marilyn Stowe on April 20, 2012 at 9:04 pm

    Maria
    You can always see someone else, you are free to live your life.
    But having a relationship with someone else can be a basis for divorce but as you have one, that should be ok. It can also potentially affect a financial settlement if you intend to live with someone. It might also affect a child dispute.
    All this should be discussed with your own solicitor.
    Best wishes
    Marilyn

  126. Lisa on April 23, 2012 at 1:08 pm

    I’m presently sorting my divorce online and am the Petitioner. My ex husband and I have split all our assets 50/50 due to a short marriage, but we have a 5 year old daughter. We have received our Decree Nisi and are just filling-in the financials. My ex is dragging his heels and has told me to put ‘Zero’ in all the appropriate areas ie pension, savings, mortgage questions. This cannot be accepted as it is not the truth, how can I push him to complete the forms, as we have now been separated for over 3 years. Thanks Lisa

    1. Marilyn Stowe on April 23, 2012 at 1:24 pm

      Lisa
      Have you seen a solicitor at all? Have you fully discussed your entitlement in law to an appropriate financial settlement which takes into account your reasonable needs and those of your daughter? If you havent then please do so.
      As for perjuring yourself dont even dream. Under no circumstances should you ever lie to the court.
      I suggest you get yourself some good personal legal advice and act on it, not least because you have a child and a clean break may not be appropriate. You may be entitled to an entirely different financial settlement to what is proposed.The length of the marriage and the passage of time may make no difference in terms of meeting your reasonable needs and those of your daughter whose existence could alter the case entirely.
      Marilyn

  127. Tony on April 23, 2012 at 8:28 pm

    Hi Marylin! Love your blog very informative!
    There was a Decree Nisi issued back in 2007 in the UK. This is for a marriage that occurred back in 2004 and official separation occurred 8th December 2005 (though we had lived together for about 10 years before).
    From what I understand the Petitioner did not proceed with decree absolute due to my non agreement to her requests in regard to settlement. I did not pursue the issue as I thought she would proceed with the Decree absolute at some point at the time.
    Since the decree nisi we have not met, lived or communicated nor have any children together. She was employed before, during and after our marrige.
    I have been living with my actual partner since 2008 and have a 3 year daughter together and would like to sort this out once and for all. I do not have any shares or assets (currently just debts) in my name anymore.
    Not sure if issuance of a Decree Absolute would be conditional on resolving the financial issues that were present 3 years ago but no longer are. How easy would it be for me at this stage to apply for a Decree Absolute? Would there be any reason why a DA would be turned down by the courts? Thanks in advance.

  128. Marilyn Stowe on April 23, 2012 at 8:41 pm

    Tony
    I’ve changed your name and the facts.
    Here is a link to tell you what you need to do to obtain Decree Abolute.
    http://hmctscourtfinder.justice.gov.uk/courtfinder/forms/d187_e.pdf
    A financial settlement is not necessary.
    However if you want a dismissal of all your respective financial claims then you could apply to the court. It’s up to you.
    Best wishes
    Marilyn

  129. RKKL on April 23, 2012 at 11:02 pm

    Hi Marilyn
    I don’t have no children no property on my name or his name…
    My decree nisi date was on jan’12 wait for 6 six and one day pass after fews week on Mar’12 I apply decree absolute with fees £45…
    I called to court to find out where my case process…
    They keep telling me it’s has been granted end of Mar’12 but still left to check and sign…
    Now end of April I am still waiting. how long does it take?
    During this issue can I get married? I need to get my divorce certificate number where should I find it??
    Thanks!

    1. Marilyn Stowe on April 24, 2012 at 5:29 am

      Dear RKKL
      The Decree Absolute is a certificate which is issued by the court and ends your marriage. It is an administrative process that is very simple. If you have paid the fee and completed the correct application it should happen soon afterwards. You will need to produce it to remarry.
      Why not go to your local court office with your divorce papers and ask them to check while you wait?
      Or write them a letter quoting your case number?
      Best wishes
      Marilyn

  130. Donna c on April 25, 2012 at 1:13 pm

    Hi Marilyn, hoping you can help , my Decree Absolute was finalised 20th April but my solictor wrote to me to advise that i should make an application to revoke the Decree Absolute due to the financial matters not been resolved.
    But i have spoken to the court and they advised that once Decree Absolute has been granted it cant be revoke …im concerned to who to believe as the last thing i want is unnesserary letters going out to my ex husband getting his back up
    many thanks Donna

    1. Marilyn Stowe on May 5, 2012 at 7:02 pm

      Dear Donna
      Just because you have a financial claim outstanding does not mean you cant get your decree absolute.
      However, presumably your solicitor obtained your decree absolute for you and from what you write, now thinks this was a mistake. What have you actually lost? You need to speak to them and ask them to confirm what has happened in writing. Your solicitors should also advise you whether they can continue to act or refer you elsewhere as you may have a claim against them,
      Regards
      Marilyn

  131. Lisa on April 26, 2012 at 9:48 am

    Hello again

    We have indeed been down the route with solicitors and mediators. My solicitor felt that with the nature of who my ex was that I should take our 2 bedroomed flat and offer of £1,000 a month spousal/child maintenance and get out. The flat is now in my name, however I still have a large mortgage and he took the equivalent in cash from the sale of our marital home. Presently he is not working and is not paying our maintenance. I have no Orders in place for maintenance as it became to expensive to pursue through my solicitor.

    He does however have a Contact Order to see our daughter and at times has her for 1 week or 2 consecutive weeks in the summer which is proving to be too much for her. He won’t listen to me though. I’m more keen to get this varied after 3 years! Due to her unhappiness.

    Im in a limbo land as he is stalling on putting his finances on paper, he’s messing around with the times that he sees our daughter … on the whole its all a massive aggravation.

    Help ….

  132. Annabel on May 2, 2012 at 2:35 pm

    Hi. My husband and I were living in the UAE. He had an affair and asked me to leave. This was only 8 weeks after me having a heart attack and stroke. Before I left he got me to sign a financial order. We now have a decree absolute and his lawyer has sent me a revise financial order to sign, with updated information. Since I first signed it I have found out he has a €60,ooo pension, which he told me was worth nothing compared to mine worth €8.ooo. I questioned this and was told I now could not question it as the decree absolute was granted and they would object in court with the fact that I signed the original one!. Please help me

    1. Marilyn Stowe on May 2, 2012 at 2:40 pm

      Dear Annabel
      I have explained in practically every reply to questions on this post that decree absolute ends a marriage and does not relate to a financial settlement which is separate and can be obtained after decree absolute. In order to reach a financial settlement which will then be turned into a court order, there should have been full frank and honest disclosure by both of you. I do not know if you are taking legal advice or not but if not then given what you write, I suggest you do so and you should not proceed further until then.
      Best wishes
      Marilyn

  133. Kim on May 3, 2012 at 4:12 pm

    Can you give me some advice please?

    I have been granted my nisi and am now working on obtaining an amicable financial settlement with my husband. We currently co-own our property, although when we brought it I put £21,000 pounds into the purchase and he put nothing into the property at that time. He is now in prison serving a long sentence for a crime that he commited many years before he met me (some 30 years ago- we have been together for over 20 years and were married for 10 at the point of his sentencing) . I am on legal aid for my legal costs but my solicitor informs me that as mediation has now (obviously) not been possible – that I now have to obtain full funding for the matter to go to court for the finances to be settled, and that the costs would be recoverable and would attract an interest rate of 8% on top. Hence why I am keen to settle the matter ourselves. My husband insists that he is still entitled to a 50/50 settlement from the sale, despite that fact that I have also paid the mortgage for the last 2.5 years.

    My husband has informed me that he has been advised that as the petitioner in the case that I would be responsible for all the legal costs including his, and that I would have to pay all the costs to sell our property, and that I cannot include any of the costs of the sale in his settlement figure. Is that true?

    I do not feel that my solicitor is very approachable so I would be so grateful for your opinion .

    Thankyou

  134. jackie on May 5, 2012 at 4:53 pm

    hi my boyfriend’s ex wife applied for a divorce and in march 2008 the nisi was granted- since then the finances were delayed and delayed but eventually sorted including army pensions etc giving her 40% and my boyfriend 60%, on january 2010 since then even thou we have paid for the absolute- nothing has happened- no letters have been replied to and no contact from the courts at all- we cannot afford a solicitor or any other legal represntation and we do not qualify for legal aid. his ex-wife disappeared with his son in 2008 and to our knowledge has moved 3 times but we only found this out through friends – he pays CSA and there is no legal reason for him not to see his son but as we have no dea where she is this is not his fault- at no time has he been given any reason why his absolute is not going though- can you give us any advice at all please – also is there a time frame where the nisi becomes invalid and he has to start all over again??? this is causing him to be stressed and depressed – to the extent he cannot think straight~! thank you

    1. Marilyn Stowe on May 5, 2012 at 5:44 pm

      Dear Jackie
      I dont quite understand what you write. Your boyfriend should go hot foot down to the court with his divorce papers and ask for help in applying for Decree Absolute. He can apply.
      Is he absolutely sure though it hasn’t been granted? I’m wondering because it looks as though the financial settlement has been implemented including the pension share. I would have expected DA to have been obtained at the same time. And to whom did he pay for DA? If it’s his solicitor at the time, why isn’t he finding out what the position is?
      Marilyn

  135. Marilyn Stowe on May 5, 2012 at 5:55 pm

    Dear Kim
    Your husband is not a lawyer. Don’t use him as your legal adviser. Of course you don’t pay all the costs just because you are the petitioner. The usual order is each side pays their own costs but where one party is unreasonable the court could order that he or she contributes towards the others costs.
    The law in this area isnt easy but by now you should have been advised about a likely outcome. Your financial contributions are relevant as are your needs and those of your husband. Without full knowledge of the facts I can’t help you but your own solicitor should. Your case doesn’t appear to be too difficult factually to give you good advise and if you aren’t happy then go elsewhere.
    Don’t let worry about costs prevent you from taking good legal advice.
    Marilyn

  136. Sue on May 5, 2012 at 10:50 pm

    My poor uncle has just died before his absolute was granted and I believe the lawyer was grossly negligent. My aunt is a very manipulative woman and actually left my uncle and agreed to the nisi no problem. Sadly, he then got cancer but had a lovely lady to care for him who he wanted to marry. The ex now refused to agree “financial settlement” convincing his lawyer that there was non disclosure. This was rubbish as both of them had retired 10 years ago and all income was clearly evident on his bank statements. The ex was demanding 100% of his CETV and 100% of the marital home. We tried to request the lawyer let the judge decide if 50% was fair and reasonable but she just kept on about the ex coming back AFTER his death for lost benefits- there were no death benefits as he had retired- just 50% spouses benefit which she has now got anyway. All he had was £2,000 in the bank and she’s put a stop on that by declaring herself his “legal wife” even tho’ he had a will in place. The family now cannot pay the funeral bills and the lawyer is demanding an additional £2,100 unpaid fees in addition to the £1,400 he already paid!!! It’s not going to help him now but do we have any redress against the lawyer who clearly failed in what she was appointed to do!

    1. Marilyn Stowe on May 6, 2012 at 6:23 am

      Dear Sue
      Professional negligence is not my field and I do not know whether there is a claim here or not or who would make it.
      Given the lack of facts what follows therefore is purely general advice. You must take your own legal advice and rely only on that.
      A pension share can be normally be obtained before death so the divorcing spouse doesn’t lose out on her widow’s benefit and there would be no impediment thereafter to decree absolute. Where there are sufficient other assets to compensate for that loss, a decree absolute could be obtained straight away.
      I have been involved in cases where a spouse is terminally ill and in one such case on an emergency application the court expedited the entire matter and arranged to have a case heard on very short notice with one party in hospital. An application for decree absolute was made alongside an application to expedite the financial side and it resolved at the hearing.
      There is still a potential for an Inheritance Act claim by your Uncle’s partner and/or other family and dependents and your own legal advice should be taken.
      Best wishes
      Marilyn

  137. Mandy on May 8, 2012 at 3:40 pm

    Dear marilyn
    Please could you help me with some advice.
    I have signed over my half of the house to my STBXH.
    It was a short marriage, 2yrs,. I did not put any capital into the purchase.
    The house was bought with the proceeds from the sale of his house. We worked on the renovation together and both spent our income doing it up which raised the value considerably to purchase the new home which I have signed over to him.
    We also started a business together in 2008 and i am company secretary with 10%share. I was not paid a salary because we had to use our joint income to subsidise the business for over 2years. He has paid himself directors loans and salary into his bank account which I did not have access to… He said he did not want a joint account.
    We parted because of his domestic abuse towards me and I was so scared of him and made even more ill because of the situation that I had no choice but to leave.
    I am now living on benefits and disability Living Allowance.
    He says that I am going to get nothing.
    My question is will a judge take into account my contribution to the marriage regarding improving quality of lifestyle as I did work very hard in the marriage with regards to the business and the home.
    I signed over the house because I acknowledged it was rightfully his but there is 100% equity in it and the business is making money. Up until recently I was involved in the business but he stopped communicating with me now.
    Thank you for your time

  138. RG on May 11, 2012 at 1:48 am

    Marilyn, thank you for all of your efforts in providing advice to everyone.

    I am coming to the end of a horrendously acrimonious divorce. I have 2 young sons, aged 4 and 6. My husband has been very underhand and extremely manipulative throughout the divorce – even though I was going to be the petitioner and had provided him with a draft petition for him to amend and approve with his solicitor and had tried to keep things civil between us, he then went behind my back and filed a petition at the court without my knowledge, so he is the petitioner and driving the whole divorce process.

    Our family home was sold last summer and we moved to 2 separate houses. I refused to sign contracts on our previous home unless a draft consent order was in place but he only produced this at the 11th hour and the buyers were threatening to pull out of the sale, so I signed it, unfortunately without getting my solicitor to check it through. Afterwards, I realised that it was incomplete – I received more of the assets from the sale of our home as I am the primary carer of our children and had to pay a premium for living in a school catchment area, but we had also previously agreed that I would receive a 50% pension credit equal to the differential between our pension values. I hadn’t realised that the draft consent order didn’t include this percentage, nor any detailed provision on what we had agreed for child maintenance, before I signed it.

    I’ve been asking for 9 months for this consent order to be revised – we had agreed that we would have a private arrangement for childcare, rather than going through the CMA and I want the provision for my children and the pension settlement to be documented thoroughly in the consent order but my STBX husband keeps posturing and is now threatening not to award me a 50% pension credit as had been previously agreed.

    The decree nisi was granted back in February and I want to have the consent order finalised and all outstanding items between us settled before the decree absolute is granted but my ex has told me today that he wants to apply for the decree absolute without having the consent order or outstanding issues resolved. I’ve also suffered so much extreme stress as a result of my husband’s actions and behaviour towards me that a long term illness has flared up again and I now want to have nominal maintenance included in the settlement (although this would only be awarded in the event that I lost my job through illness or redundancy until I was able to recover and generate an income again). My ex is adamantly saying he will not include nominal maintenance, unless he pays me a much lower pension credit than what we’ve agreed.

    I’ve read through your other posts and understand that a decree absolute can be granted without the consent order having been agreed or financial settlement in place but I am extremely worried about this as my ex is very manipulative and I feel that he will try to get out of the agreements that have already been made. If the decree absolute has been granted without the financial settlement in place, I feel that my leverage will be radically reduced. I hoped that we could resolve this without going to court, but if the decree absolute is granted and no financial settlement has been agreed, is it likely that this will go to court and my bargaining power will be reduced and what we had previously agreed on pensions/child maintenance and additional costs will be overturned and I will end up with a much reduced settlement?

    Is there any way I can prevent him from getting the absolute granted until the consent order and financial settlement is finalised and signed? Do you think I would be successful and would this be a costly process?

    Many thanks for any advice you can offer.

  139. Jay on May 13, 2012 at 10:04 pm

    Dear Marilyn, thank you for the advice you are providing us all..
    I am going through a divorce, and have reached and passed the date for the Decree nisi which is now coming up to 8 months.. however before we send it off for the DA, I am trying to sort out the financial part of the divorce, we are now going through mediation to get this sorted as she wasnt responding to my solicitors letters, and my solicitor says it would be cheaper than going to courts.. 8 months later we have only been to one session because she keeps canceling.. should i just send off for the DA and worry about this later as all I want is to be is divorced.. ?

    1. Marilyn Stowe on May 14, 2012 at 5:56 am

      Dear Jay
      You need to ask your own solicitor. In principle of course you are entitled to have your divorce decree made absolute but you need to check if you are running a risk applying before finances are resolved. It’s unlikely, but you should still check. You should also check if you gave an undertaking to your wife’s solicitors not to apply for Decree Absolute until finances were resolved. If so, this also needs considering. Similarly if you are the Respondent, your wife might object and if she does, please read the Case above, which is the subject of the original post to cosider how you would deal with her objections.
      After eight months it doesn’t seem that mediation is achieving very much so why not also consider an application to court?
      Regards
      Marilyn

  140. Jay on May 15, 2012 at 9:06 pm

    Hi Marilyn,

    Thank you for getting back to me, I am the petitioner, what can I say about my solicitor except for I really know how to pick them.. I will give him a call in the morning, the problem with going to court is that its already cost me an arm an a leg to get to this point, whereas my ex is on legal aid.. again thank you for your advice.
    Regards
    Jay

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Marilyn Stowe is the senior partner in Stowe Family Law, which has offices in Yorkshire, Cheshire and London. With more than 25 years’ experience handling divorce cases and family law proceedings she is regarded as one of the most formidable and sought after divorce lawyers in the UK.

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Note

I write for the benefit of those who are experiencing family breakdown and for fellow family law professionals. Please note that all persons mentioned in the scenarios are fictitious: details have been deliberately changed in order to protect identities and other confidential circumstances of my clients.

Please also note the advice I give in each scenario must not be relied upon by anyone reading my blog. You must always take your own legal advice as your circumstances may be different and English family law is continually changing.

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Marilyn Stowe is the Senior Partner at Stowe Family Law LLP. Stowe Family Law LLP is authorised and regulated by the Solicitors Regulation Authority. SRA ref 469401. Stowe Family Law LLP is registered with Companies House, ref. 331570, and registered for VAT, number 918 5722 04. A list of members is available for inspection at our Harrogate office.