Delaying the Decree Absolute: another look at Miller Smith v Miller Smith
If 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.
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69 Comments
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?
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?
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.
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?
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.
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
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
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
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
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
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??????
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??????????????????
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.
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.
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.
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
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!
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
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
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
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
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
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.
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
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
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?
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
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
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.
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
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
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
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
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
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
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?
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.
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.
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
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.
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.
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.
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.
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?!
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!
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!
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!
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.
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
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.
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 ?
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!
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
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.
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
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.
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
Cat on December 30, 2011 at 12:43 am
Thanks Marilyn I really appreciate your help & the link.
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.
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
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
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 !
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
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
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 ?
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
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
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?
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