Severing the ties – what Decree Nisi and Decree absolute mean in divorce proceedings

18 March 2016 | Written by wearefactory

By Peter Jones, founder

When one of our family law specialists took part in a BBC Radio Leeds legal phone-in recently, listeners’ questions included one on the final stages of divorce.

We wanted to take the opportunity to explain how there are two end stages to every divorce – and when you know that it’s finally over.

Decree Nisi

This does not officially end the marriage: it is a formal, but provisional, stage that confirms the person seeking divorce (the petitioner) is entitled to bring the marriage to an end. This means that after a further 6 weeks an application can be made for the Decree Absolute, which will terminate the marriage.

A Decree Nisi is granted when the court has been satisfied that the petitioner has not only established a cause for divorce under one of the five legal grounds in the UK such as adultery, or unreasonable behaviour –  but more significantly that the marriage has completely broken down.

Neither party need attend court unless one or both of the divorcing couple want to withdraw the petition or there is dispute about costs or a previous agreement or ruling.

Decree Absolute

This is the legal document granted by the court that officially brings the marriage to an end.  It is not until the Decree Absolute is received that the parties are free to remarry if they should wish. The petitioner can apply for the Decree Absolute six weeks and one day after the date the Decree Nisi is granted. If they do not do so, the other partner can apply after a further three months. Notice of that application has to be given to the other party, who can raise objections if so inclined. After Decree Absolute, the parties are no longer each other’s “next of kin”.

Often, the reason for delaying the application for a Decree Absolute is because of unresolved financial issues, such as the division of assets and of significant concern entitlements under insurance or pension arrangements.

While a marriage legally ends with a Decree Absolute, there is no legal requirement to establish a financial agreement dealing with each party’s claims before the divorce is finalised. This leaves the serious risk that a former spouse can make a claim against their ex, often years after the divorce is finalised.

Our team of specialists at Jones Myers always advise a final  order is critical when divorcing, regardless of how amicable the parting is. A formal agreement, known as a consent order, sets out any financial agreement in the process. It is particularly important for business owners, or anyone planning to set up a company post-divorce – because it can formally regulate, and sometimes dismiss, the right for either party to ask for money or a share of assets in the future.

If you have any queries about Decree Nisi, Decree Absolute, clean break orders, or any other divorce related issues, please leave a comment below, call the Jones Myers team on 0113 246 0055, or tweet us on @helpwithdivorce.

Comments

  1. I married in 2011. I obtained a decree nisi in January 2019. A financial settlement was agreed prior to that and not contested by my husband. This was a short marriage and my pension was paid for before it. My pension did not form part of the settlement. Neither of us wishes to apply for the Decree Absolute. We are aware that we are still married in law. However we would each like to make a will to supersede the wills made when we were married. Our wills would leave our estates to our respective families. There is one issue which I require confirmation of. I have a teachers pension and in the event of my death my husband would get a spousal pension of up to 50% of my pension. Will 5is still be he case if we have a decree nisi and make wills as described above?

    1. Thank you for your query. We would require more information as to why you do not wish to apply for a Decree Absolute. Further, you do not indicate whether the “settlement” was a formal consent order of the court. It is essential that you establish what you wish to achieve in the future and take specific advice to establish if this can be achieved. In regard to your pension, you should also seek advice from an IFA as to the precise terms of your pension arrangements dependant on whether or not a Decree Absolute is sought. You should also appreciate that notwithstanding you have both agreed [at the moment] not to apply for a Decree Absolute one or other of you may change their mind and apply in the future. Your present informal arrangement is unnecessarily risky and should be resolved with a formal structure. Please note we cannot be responsible for any problems which may arise unless we have the opportunity of a detailed discussion in regard to all the facts and the action which is required. We are making general observations only from the limited facts available. We advise that you seek a short appointment with a solicitor who is a member of Resolution. Alternatively, you can contact us for an appointment at Leeds on 0113 246 0055, Harrogate on 01423 276104, or York on 01904 202550. Visit http://www.jonesmyers.co.uk, email info@jonesmyers.co.uk

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