Ask a family lawyer: “Our decree nisi has come through, but we have changed our minds!”
November 30, 2013 1 comment
Question: Our decree nisi has come through, but we have changed our minds! We want to give our marriage another go. Can you stop a divorce once the legal wheels are in motion?
Anthony Jones (right), a solicitor in Stowe Family Law’s Hale office, replies: This is an interesting area of family law, and one with which solicitors here at Stowe Family Law LLP are familiar: one of our reported cases, S v S (2002) 1FLR 992, touched upon the court’s power to rescind a decree nisi.
Decree nisi is the first of two decrees within divorce proceedings but it does not dissolve the marriage. It is the provisional decree and is only pronounced once the court is satisfied that the legal and procedural steps have been met. The second decree, known as decree absolute, ultimately dissolves the marriage, this can be applied for six weeks and one day after the pronouncement of decree nisi.
The Court has the inherent power to rescind a decree nisi.
High Court judge Mr Justice Singer held in the case of S v S (which Stowe Family Law were involved in) that this jurisdiction was based on the “Court’s ability to control proceedings and implies and justifies the need to bring them to an end. Where a Decree Nisi has been pronounced but, for whatever reason, it is clear no application to make it Absolute is likely to be made, then if the matter is brought to its attention the Court does have the ability to and should mitigate any stalemate which then arises. Every such decision will involve the exercise of a discretion, although the fact that both parties’ see the same outcome which should be a potent but not overwhelming factor.”
As you both therefore want to give your marriage another go, you can make an application to the Court to rescind the decree nisi. To bring the proceedings to an end the divorce petition must also be dismissed and both rescinding the decree nisi and dismissing the divorce proceedings can be applied for by agreement.
If the divorce petition is based on adultery by respondent (ie the person who receives the divorce papers), and you have lived together for a period or periods together exceeding six months since this adultery was discovered by the petitioner (ie the person who filed for divorce), then the divorce petition cannot proceed. The decree nisi cannot therefore be made absolute so it must be rescinded. This was the situation in the case of Kim v Morris, where Mrs Justice Parker rescinded the decree nisi and dismissed the divorce petition.
It is important that incomplete divorce proceedings are dealt with, particularly if financial matters have been agreed and the court has approved an order as such orders cannot be implemented without a decree absolute – and of course, that cannot be applied for if the decree Nisi has been rescinded. If the reconciliation does not work then new divorce proceedings would need to be issued and there would be a delay in the implementation of the order.
In short, the, answer to your question is yes. Do bear in mind, however, that the procedure is not always straightforward. Your solicitor will be able to advise you further.
Anthony Jones has dealt exclusively with family law matters, in particular divorce, matrimonial finance (including high net worth assets), children, domestic violence, cohabitation and both pre- and postnuptial agreements. He is also a Resolution -accredited specialist in advanced financial provision and cohabitation.
November 30, 2013
Categories: Ask A Family Lawyer