06 September 2012, by Taylor King Family Law Solicitors
When a party petitions for a divorce, the court will make a ‘Decree’ that ends the divorce. This occurs in two stages: first a decree nisi is made and later this decree is made absolute. The decree nisi is a provisional decree of divorce (from the Latin nisi, meaning unless) which is made after the court is satisfied that the legal and procedural requirements of a divorce have been met. There is then a “cooling off” period of six weeks and one day before the petitioner can apply for the decree nisi to be made absolute. The decree absolute brings the marriage to an end.
Early decrees absolute
In very exceptional circumstances the petitioner can apply to the court for leave to make the decree nisi absolute during the six week and one day period, e.g. where the petitioner is expecting a child and for religious and social reasons wants to marry the father before the child is born.
Delaying the Decree Absolute
A petitioner or respondent will sometimes wish to delay the making of the decree absolute until financial issues have been resolved or a religious divorce has been concluded.
A respondent can apply to the court to delay the making of the decree absolute. This is at the discretion of the judge whether or not to grant such an application. The respondent will need to show exceptional special circumstances. It is not sufficient to make the application simply on the basis that there would be a potential loss of pension to the respondent. The fact that financial matters have not been resolved is not in itself sufficient to delay the making of the decree absolute by the petitioner.
Decrees absolute at the respondent’s request
If the petitioner does not apply for the decree nisi to be made absolute then the respondent can seek permission from the court to apply for a decree absolute three months after the earliest date that the petitioner could have applied. This involves making an application on notice and a hearing before the District Judge. Simply because financial matters have not been resolved will not prevent the respondent being granted permission to make the decree absolute.
In a recent case of Evans v Evans the court granted the husband leave to make the decree nisi absolute. On appeal the wife applied for a stay of the decree absolute having produced evidence from her American lawyers that she would be prejudiced with regard to enforcing a financial order if the decree nisi was made absolute. The decree absolute was stayed upon conditions relating to the transfer of shares.
Another recent case, that of Kim v Morris, considered the effect of a lengthy period of reconciliation and cohabitation after the declaration of the decree nisi. The wife accused the husband of adultery and the decree nisi was declared in April 2006. The parties then reconciled in July 2006 and cohabited for over four years. The parties again separated and the wife subsequently sought to finalise the divorce.
The court had to consider:
- Whether the decree nisi should be made absolute following over four years of reconciliation and cohabitation;
- If not, whether the decree should be rescinded;
- If the decree was rescinded whether or not the wife should have permission to file a supplemental petition alleging unreasonable behaviour;
- If the whole petition should be dismissed.
It was held that leave for the decree nisi to be made absolute should be refused, there was no power for the wife to supplement her petition and therefore the decree nisi should be set aside and the petition dismissed. This decision was based on the antiquity of the petition and the lengthy cohabitation that followed. At the time of the hearing neither party was residing in the UK and that supplementing the petition was artificial owing to the fact that the only issue preventing the wife issuing a fresh petition was a lack of jurisdiction (that is to say, the parties could not apply for a divorce under a new petition because neither of them lived in England or Wales any more).
The “normal” divorce
Usually, a divorce petition does not encounter the above problems. However, if a party to a divorce has reason to make an unusual application in relation to the decree absolute it is important they consult family law experts who can advise properly on the available options.