I receive a massive number of comments on this blog concerning the decree absolute. It seems to be the one stage of the divorce process that causes most confusion, and so I thought it time to look at it in a little more detail and consider the important steps to take once it has been granted. Just this weekend a further example of the queries we’ve so far received was submitted:
I have been going through a divorce in the last two years and now seem to be at a dead end. I was at the last stages in October last year to receive the decree absolute but had to disclose financial matters before the divorce was ended. I have waited and waited and never get a reply from my wife’s solicitor.
My question is can I get divorced now without sorting out the financial matters and if so how? The second question is can I force the divorce to go ahead? Regards, Steve.
So 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.
Applying for the decree absolute and what to consider
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. 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 himself 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.
A Respondent to the divorce is not treated the same as the Petitioner. A Respondent, such as Steve, may make an application for the decree absolute if the Petitioner fails or refuses to do so, but only after a further three months has elapsed from the earliest date the Petitioner could have applied. Steve can do this by issuing an application to the court, which will hear the application and make the decision. It is not automatically granted by simply lodging a straightforward notice to the court, as it would be if the Petitioner is applying.
A Respondent should also note that if remarriage occurs without having issued a financial application in the divorce proceedings, his or her entitlement to a financial settlement may have gone. So don’t remarry without having checked your legal position.
Sometimes more than a year has passed since the decree nisi. In that case, the process is slightly different and it is necessary to explain to the court why such a length of time has elapsed and in particular whether the parties have resumed cohabitation or there has been a child born. It is rare for the court to require a hearing but when circumstances are unusual it may. Further practical advice on all these matters is available at the DirectGov website.
In most cases 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 final orderly step to 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 in which –exceptionally – the mandatory period was shortened.
Conversely, where perhaps a religious divorce is required, or more commonly a financial settlement is still being negotiated, there may be good reason to delay the granting of a decree absolute. And it is this concern, whether or not to proceed to decree absolute when financial elements have yet to be agreed, that has occasioned the majority of the requests for advice to my blog.
Sometimes the parties agree at the outset that neither of them will apply for decree absolute until all the issues between them are resolved. Some parties don’t or won’t, and so an application to hold-off on the decree absolute may be required.
If for example a religious divorce is still required, the decree absolute can be postponed indefinitely by the court so that the parties are not simultaneously married in one sense and divorced in the other.
As regards finances, in most instances having a decree absolute does not affect a financial settlement, so it should not delay the divorce. One is not usually interdependent on the other. In fact, a financial settlement once ordered cannot legally be implemented without a decree absolute. So for most of my correspondents there is no reason at all to wait for financial proceedings to conclude before applying for decree absolute.
However, I would suggest it is always wise to check first with a lawyer before taking that final step.
For example it may be inadvisable in some cases to proceed to decree absolute if a financial settlement has not yet been obtained, since if one of the parties dies before a financial order has been made the surviving spouse will lose out on any automatic spousal benefits that would have been paid. Thus, if the couple are still married and one dies, the survivor is still a widow/widower and therefore entitled to spousal benefits regardless of whether they were happily married. The chances of this happening are unlikely, in fact I can recall only three deaths prior to decree absolute in my entire career. But when it happened, I breathed a huge sigh of relief because the client was still entitled to those spousal pension benefits. In one such case, my client had been separated from her husband, and obtained her decree nisi of divorce. Her husband had been violent to her and had been ordered by the court to move out of the family home. When he died in a road accident prior to decree absolute it was she as his spouse who received his substantial death benefits. However, some people may take the view that this is so unlikely, or the amount that might be payable so small, that it shouldn’t hold up decree absolute.
In more complicated cases however, e.g. involving onshore or offshore trusts or company assets, proceeding to the decree absolute before the financial order is made may seriously affect the outcome, as assets may no longer be available for transfer to a divorced spouse. (See the recent case of E-v-E (2012) CA. In this case the wife was appealing a financial order and her legal team in America had written to say that if she first had decree absolute her position would be prejudiced. Accordingly she obtained a stay of her decree absolute)
Yet even if there may be a potential loss, if there are sufficient assets to make up for that potential loss, or the nominee of the pension can still be the ex-spouse before a financial order is in place, then there may still be no reason to hold up the decree absolute. The leading case in this area is one in which my firm represented the husband successfully.
Again, because this is a potential minefield it is wise to take legal advice before applying for a decree absolute. Don’t guess or assume. Similarly, don’t assume you can’t apply for decree absolute either, whether Petitioner or Respondent, as a financial settlement does not have to be in place before decree absolute.
Whenever you finally receive your final decree, do remember to keep a note of your court number and the certificate of decree absolute in a safe place – if you remarry, you will need to produce the original copy. If you lose it, you can obtain a further copy from the court where the divorce took place by quoting the court number or from. If you don’t remember the court, the Principal Registry of the Family Division can undertake the same exercise.
And there still remain a number of practical and emotional matters for you to consider. They are as follows:
A checklist once decree absolute is granted
1. Have you informed your children’s schools that the divorce has been finalised? Schools should be kept up-to-date so that they can monitor your children and give them extra care and support, if necessary.
2. Have you changed your will? Your old will should be changed if it makes reference to a former spouse, although any bequest to a former spouse will now automatically fail unless the will makes it clear the provision is to last post decree absolute. Please also remember that if you remarry, any will made before remarriage will be invalid.
3. Have you applied for a new passport, bearing your new details? Visit the Gov website for further information.
4. Have you informed your mortgage lender of any changed details or relevant developments?
5. Have you closed any joint bank accounts, as per the court order?
6. Have you changed the personal contact details on any remaining bank accounts and credit cards? Some banks will allow you to do this over the telephone; others will insist on a face-to-face meeting and supporting documentation such as your decree absolute and utilities bills.
7. Have you applied for a new driver’s licence, bearing your new details? Visit www.dvla.gov.uk for further information. Failure to do this could result in a fine.
8. Have you updated the details on any relevant insurance policies?
9. Have you notified Her Majesty’s Revenue & Customs of your new situation and contact details? Visit www.hmrc.gov.uk for further information.
10. Have you updated the relevant details on telephone and utilities bills? These could range from changed correspondence details to new friends and family numbers.
11. Where applicable: have you visited your local benefits office, to discover what you may now be entitled to claim? Visit www.dwp.gov.uk/localoffice for further information.
12. Have you signed the necessary forms to resign from any business assets in which you previously had an interest?
Above all, take things day by day, step by step. Now it is time for you to rebuild your life…
For more information read our helpful divorce guides or take a look at one of the most famous cases on this topic – Delaying the Decree Absolute: another look at Miller Smith v Miller Smith.