One of the biggest topics for readers of this blog who are getting divorced remains whether or not to finalise a divorce by applying for a certificate of decree absolute. It’s a scary thing to do, to finally end a marriage, but it is necessary when there is a financial settlement because a court order can’t be effective until then. For readers who have a civil partnership it’s the same situation but different terminology:- for “decree nisi” read “conditional order” and for “decree absolute” read “final order”.
The problem arises when there isn’t a financial settlement yet in place and no one knows what to do. Do they apply or not? Will they lose out by applying?
My first comment is if you are being advised by a solicitor discuss your specific case with them. You are paying for legal advice, so please take it.
What happens after decree nisi is granted?
The law is clear. At the end of 6 weeks from decree nisi a petitioner may apply for the divorce to be made final by completing a simple form and lodging it with the court. The certificate of decree absolute which is stamped (lawyers call it ‘sealed’) by the court will then be issued to both parties.
Do remember to keep your copy safe and to keep the details of the court and number of the proceedings too just in case you lose it. You will need your copy, for example, if you want to remarry. A photocopy won’t do. Don’t change children’s names either without permission from your ex or a court order and make sure your will is up to date.
What if I apply for decree absolute out of time?
If the petitioner doesn’t apply, the respondent still can but only three months after the six week initial period. If a petitioner delays for over 12 months an explanation will also have to be given to the court. There has to be a formal hearing if the parties can’t agree. The court will grant the respondent’s application for a certificate of decree absolute unless the petitioner can show a valid reason why it shouldn’t and if they can’t, can order the costs to be paid by the petitioner- so consent should not simply be withheld out of fear. There has to be a good reason.
In most cases such good reasons revolve around financial claims still unresolved and the death of the wealthier spouse but there are other reasons which may apply too, usually to wealthy people. So, a still married spouse might be able to have assets out of a trust that a former spouse cannot. If there is a decree absolute that part of the claim might fail and if there are insufficient assets to make up the potential loss, there should not be a decree absolute until after the financial case is over. The latest case I can find on this is a decision by Moor J in Thakkar v Thakkar.
That’s why if you have a lawyer you should take advice.
But most reasons relate to the loss of death benefits available to a still married spouse before a financial settlement has been obtained.
What happens if a spouse dies before decree absolute is granted?
Let’s see what happens. If a spouse dies before the finances are sorted out, that’s the end of the divorce case. The claimant then becomes either an ex-spouse with an unresolved financial claim or a widow or widower with an unresolved claim. If their inheritance is insufficient and /or an agreement cannot be made with the people dealing with the estate, an application may be made by the claimant, under the Inheritance Provision for Family and Dependents Act 1975. And it doesn’t matter if the applicant (as they are then called) was married or not at the date of death. All claims are assessed on their own facts and dealt with as if it was a divorce taking place dealing with all the assets as they were during the lifetime.
No inheritance tax is payable by either a widow/er or a former spouse on the award.
So why does it matter?
The answer is that a state widow/er’s pension and bereavement allowance might be payable, as well as widow/er’s pension under pensions death benefits which would be paid only to a widow or widower. There may not be enough assets in the estate to compensate for those losses, however remote it really is. In practice very few people die before the case is settled. But it can happen. So it is important to preserve the marriage until the pension has been shared and all those possible benefits which are lost on decree absolute are taken into account.
I would say that, because it’s tricky to understand, even if you don’t have a lawyer take financial and legal advice if in doubt, in order to help calculate the potential loss and risk. There’s no point in complaining later.
One other reason for postponing decree Absolute has nothing to do with financial loss but for religious reasons instead. A religious divorce might be required as well as a civil divorce and the parties don’t agree. So it is wise to postpone Decree Absolute until then. There is a specific application that can be made for this under Section 10 (A) 2 of Matrimonial Causes Act 1973 and it is wise to agree before the civil divorce proceeding that neither party will apply for decree absolute until the religious divorce is in place.
For more information, watch Marilyn here:
Photo by Randy Merrill via Flickr under a Creative Commons licence.