Applying for decree absolute: an essential guide
April 21, 2017 2 comments
Once the interim stage in divorce, the decree nisi, has been pronounced, the petitioner (the person who has initiated the divorce) must wait a minimum of six weeks and one day before asking the court for the final stage, known as the decree absolute. This is done by completing a simple form and lodging it with the court. It is the decree absolute which will formally dissolve the marriage.
If more than a year has passed since the pronouncement of decree nisi, the application is slightly more involved as it is necessary to explain to the court, usually in the form of a written statement, why such a length of time has elapsed and to confirm that the parties have not cohabited together or a child has been not been born to them in the intervening period. Often such delays occur because time was needed to sort out the financial settlement.
When the petitioner sends the decree absolute application to court, the court should process and pronounce it the same day. Parties are only legally divorced once decree absolute has been pronounced. If a divorced person later wishes to remarry, a sealed copy of the decree absolute must be produced as evidence that they are legally free to do so.
It is possible to be divorced and remarry without the finances having first been resolved but that person’s entitlement to a financial settlement may be extinguished. This is the so called ‘remarriage trap’. It is therefore very important to take legal advice if you are considering remarrying.
Sometimes, a petitioner may refuse to apply for decree absolute. Emotionally, it may seem like a step too far, too soon – and the petitioner, despite initiating the process, cannot bring him/herself to take the final step. If this occurs, the respondent can apply themselves after waiting for at least three months from the date the petitioner could have first applied. However, if the respondent applies, there will be a court hearing before the court makes a decision so that the petitioner has the opportunity to explain (“show cause”) why the decree absolute should not be pronounced.
But this judicial discretion to postpone decree absolute is only available in cases where special or exceptional circumstances can be demonstrated. The normal rule is that it cannot be delayed, as per the case of Miller Smith v Miller Smith, unless there is good reason to do so.
There are occasions when, legally, it would be unwise to apply for decree absolute on the earliest date available: for instance, when financial benefits could be lost if one party was to die before the other without a court order being in place for a financial settlement. In such circumstances, the surviving party could not be properly compensated out of the other assets for the loss. Whilst it may be very rare for someone to die during divorce proceedings, it can happen.
Benefits such as a state widow/er’s pension and bereavement allowance, as well as death benefits to be paid to a widow or widower, may be lost if a party dies unexpectedly and decree absolute has been pronounced but there is no financial remedy order in place. There may be insufficient other assets in the estate to compensate for these losses and so it is important to preserve the marriage until the finances have been considered and dealt with properly.
Where the parties also want a religious divorce that requires co-operation to obtain, for example a get amongst Jewish couples, then it is possible to ask the Court to order that the decree absolute cannot be pronounced until both parties have declared that they have taken the necessary steps to obtain such a religious divorce. A specific application can be made for this under Section 10A(2) of the Matrimonial Causes Act 1973.
In other cases, there may be a rush to obtain decree absolute, for example if a party has an urgent need to remarry due to the imminent arrival of a new baby. In exceptional circumstances, it may be possible to shorten the mandatory six weeks between decree nisi and decree absolute.
Lastly, the decree absolute has a significant impact on any will you have previously prepared insofar as that will makes provision for your spouse. The consequence of your marriage ending is that you no longer have a spouse so it is very important that you always change your will if and when you divorce. It is important in any event that you always have a will prepared for you so that you can decide how you leave your estate.
The pronouncement of decree absolute is very significant and can have much wider consequences than just dissolving your marriage so you should take independent legal advice to ensure that you fully understand the consequences.
April 21, 2017
Categories: Essential Guides