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Should I wait to apply for my Decree Absolute?
- AuthorSam Miles
Once you have made the decision to divorce, we know that you will be keen to finalise the details as swiftly as possible to allow you to move forward with your new life. The first step is to apply for your Decree Nisi and once that is granted you can apply for your Decree Absolute; we are often asked whether we would recommend applying for the Decree Absolute at the earliest opportunity or whether it would be more prudent to wait. Sam Miles, Family Law Partner, explains here why it could be in your best interests to wait to apply until the time is right.
Applying for divorce
The Decree Absolute of divorce is the final decree, and it dissolves your marriage. You would apply for the Decree Absolute once the Decree Nisi has been granted, which sets out an agreement from the Court that there are no reasons why you shouldn’t be allowed to divorce. Following the Decree Absolute, you will then be divorced, and free to re-marry if you wish.
If you are the petitioner in the divorce, i.e. the person initiating the application, you can apply for the Decree Absolute six weeks after the date the Decree Nisi was pronounced, and at any time thereafter. If you wait for more than 12 months after pronouncement of the Decree Nisi you will need to file an accompanying explanation giving the reasons for the delay and confirming some other pieces of information. No fee is payable if you are the petitioner, and the application is usually dealt with quite quickly by the Court Office with your Decree Absolute being granted a few days later.
The process if you are the respondent, i.e. the divorce petition is being filed against you, is slightly more complex. A respondent cannot apply for Decree Absolute until the date three months after the earliest date on which the petitioner could have applied. Put simply, 4 and a half months after the Decree Nisi. An application by a respondent incurs a fee and there will often then be a short hearing to consider the application.
Why should I delay applying for the Decree Absolute?
We would generally recommend that you do not apply for Decree Absolute until financial matters flowing from the divorce have been resolved. This is because you may have assets such as pensions where your former spouse benefits, which will be lost if you are no longer married to one another. If one of the parties dies after the Decree Absolute but before financial matters have been resolved, the other party loses the special status of “widow” or “widower”. Often this means they lose financial benefits they may otherwise have gained whilst still married. Additionally, they may not be adequately compensated for their loss from the remaining assets, and pension survivor benefits may also be affected.
Alternatively, it may be important to preserve the petitioner’s right to occupy the matrimonial home. Under section 30 Family Law Act 1996, both spouses have a right to enter and occupy the matrimonial home until the Decree Absolute is granted, unless the Court orders otherwise. Where the property is in the sole name of one spouse, the other spouse may have registered their home rights to protect their rights of occupation and ensure any potential buyers and lenders are aware of their rights. These rights expire on Decree Absolute. If the financial matters have not been resolved by the time the Decree Absolute has been made, the spouse will have to make an application under section 33(5) Family Law Act 1996 to extend their home rights beyond the Decree Absolute.
In some cases, obtaining the Decree Absolute before the financial remedy claims have been resolved may have adverse tax consequences or, as a now former spouse, make it impossible to make a claim at all, if there are onshore or offshore trusts or offshore assets.
As soon as the financial remedy proceedings are resolved, the petitioner should apply for Decree Absolute as financial orders cannot be implemented until the Decree Absolute has been made.
We would always recommend you heed your Solicitor’s advice as to when you apply for the Decree Absolute, as applying too soon could have serious consequences. For more information about how Sam could assist you with your divorce proceedings, contact her today on 023 8071 7431 or email firstname.lastname@example.org. Alternatively, the following resources may also be useful to you:
- Divorce and separation explained
- Fixed fee divorce packages
- Family Mediation
- Military pensions and divorce
This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice. All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.