Is There A Time Limit For The Decree Absolute?
There are important rules to know about the decree absolute when filing for divorce that will decide how smoothly your divorce will proceed.
One thing most divorce applicants don’t know much about is the time limits and how they can affect certain rights to money and assets following a divorce.
We will consider the rules relating to the decree absolute and how to ensure that the application deadline is not missed.
What is the decree absolute?
While the decree nisi is the initial proclamation by the court that a divorce can proceed, it is the decree absolute that officially brings the marriage to an end.
Obtaining a decree absolute is the final stage of the divorce process. The decree absolute is essentially a court order and legal document which officially terminates a marriage.
Once a decree absolute has been issued, the former spouses will no longer be married in the eyes of the law, and they are free to remarry if they so choose.
When can I apply for a decree absolute?
There are two important timings relating to the decree absolute:
- Waiting period – it is necessary for the petitioner (the person who applied for the divorce) to wait for at least 43 days (6 weeks and 1 day) following the date the decree nisi was issued before being able to apply for the decree absolute. If the respondent (the petitioner’s spouse) wants to apply for a decree absolute, they must wait a further three months.
- Deadline – subject to the waiting period, a divorcing couple must apply for a decree absolute before 12 months have elapsed since the decree nisi was issued.
Failure to abide by these timings can impact the divorce process and potentially require the entire procedure to be restarted from scratch.
What is the purpose of the waiting period?
The six weeks (and one day) delay between the decree nisi and the decree absolute is designed to allow the couple to have a ‘cooling-off’ period to decide if they still want to continue with their divorce.
This is also a good time to negotiate a financial settlement and prepare a financial consent order (although this only takes effect following the decree absolute).
How do I apply for a decree absolute?
To apply for a decree absolute, Form D36 needs to be completed and submitted to the court. This serves as an official notice of application for the decree nisi to be made absolute.
Once it has received the form, the court will check that the time limits have all been met and consider if there are any reasons the divorce should not go ahead.
Assuming everything is in order, a decree absolute certificate will be sent to each former spouse (or to their solicitors).
What happens if the deadline is missed?
Under certain circumstances, either divorcing party may need to delay the decree absolute. It will be necessary to explain the reasons for any delay in the application for a decree absolute to the court.
The court has the discretion to allow a late application – or else it can reject the reasons for the delay which means the entire divorce process needs to be started again.
What happens if I don’t apply for a decree absolute?
If the petitioner does not apply for a decree absolute, the respondent can apply instead – although they have to wait a further three months (ie in addition to the initial ‘cooling-off’ period of 43 days).
In the absence of any application for a decree absolute from either spouse – and if a delay is not explained to the court – the decree nisi will elapse 12 months after it has been issued.
This will essentially cancel the divorce application. If the couple still wants to get a divorce, later on, the clock will have been reset and they will need to start the process from scratch.
Should I apply for a financial order before applying for a decree absolute?
It is possible to apply to the court for a financial order at any point after the decree nisi has been granted – but it will not come into force until the decree absolute has been issued.
Although a consent order can be made after the decree absolute, it is generally advisable to obtain one beforehand. There are several reasons for this, including:
- Certain assets cannot be transferred between former spouses once the divorce has been finalised (eg pensions), or transfers can become more difficult or costly.
- If one party remarries, they will lose their rights to make financial claims from their ex-spouse.
- If one ex-spouse dies during financial negotiations, their former spouse will not have any automatic claim to their estate if the decree absolute has already been issued.
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