When do I apply for a Decree Absolute
When should I apply for Decree Absolute?”
What is the Decree Absolute?
When a couple divorce in England and Wales, there are usually two stages to the procedure. Once a divorce petition has been issued by the Petitioner, and acknowledged by the Respondent, the next stage is applying for the Decree Nisi. When the court pronounces this, it means it has been sufficiently proven that the marriage has broken down irretrievably. Although the terms and processes will shortly change, there will still be an interim or condition order akin to Decree Nisi.
The second stage is the Decree Absolute. If you are the Petitioner, the earliest you can apply for the Decree Absolute is 6 weeks and a day from the date of the Decree Nisi. (Note: If you are the Respondent, you can also apply for the Decree Absolute. However, the application carries a fee, and you cannot apply until 3 months after the Petitioner would have been able to apply for the Decree Absolute – in other words, the Respondent has to wait at least 4 and a half months to apply).
What does it mean?
The Decree Absolute is the final order which formally ends the marriage. This means the parties are able to re-marry freely. The Decree Absolute replaces the parties’ marriage certificate, and should be kept safe.
The grant of the Decree Absolute also means that a number of marital rights and entitlements are or can be extinguished. This is set out in more detail below.
Reasons not to apply straightaway
It is important not to apply for the Decree Absolute until all of the matrimonial finances have been dealt with. For example, should one of the parties die after Decree Absolute, but before the assets are dealt with, this can have an effect on assets they would have entitlement to whilst married. This can include assets such as sharing a former spouse’s pension, and possibly as they would not be classed as a widow or widower, surviving spouse benefits cannot be claimed. Nominations to pay benefits out of Life Assurance policies will also be at risk.
There is also a risk of losing the entitlement of occupying the matrimonial home if the property is registered in the sole name of one spouse. The other spouse will have likely registered a Home Rights Notice to protect their right to occupy their home, as well as their beneficial interest. This right expires once the Decree Absolute is pronounced.
There can also be tax implications if the Decree Absolute is applied for when the finances are not settled. For example, there is the possibility that any transfers of property can attract Capital Gains Tax, which would usually be exempt whilst the parties remain married, although tax rules can be complicated and would need to be discussed with your specialist adviser in every case.
What happens if Decree Nisi was pronounced more than 12 months ago?
Sometimes financial settlements in a divorce can take months, if not years, depending on the situation of the parties. As explained above, the earliest the petitioner can apply for Decree Absolute is 6 weeks and one day from the date of the Decree Nisi. If the Petitioner seeks to apply for Decree Absolute more than 12 months after the date of the Decree Nisi, there are several legal requirements to comply with in the application.
As well as submitting the application applying for Decree Absolute, the Petitioner has to submit a statement confirming the following:
1. The reason for the delay was due to the fact that the parties were negotiating a financial settlement, and have now reached an agreement;
2. The parties have not lived together with each other since the date of the Decree Nisi; and
3. The wife has not given birth to any children since the date of the Decree Nisi.
Once the Court is satisfied of the above, it will be able to accept the application and pronounce the Decree Absolute accordingly.