Legal Mythbusting – The Decree Absolute

Whilst divorce proceedings frequently appear in the media, there remain some myths and misconceptions surrounding divorce proceedings, and in particular the effect of decree absolute.

4 main stages of divorce proceedings

There are four main stages of divorce proceedings, as follows:

1. Issuing the petition (the divorce petition is sent to the court by the petitioner);
2. Acknowledgement of service (the respondent replies to the petition to confirm receipt of the petition and to confirm whether they intend to defend the proceedings or dispute any costs);
3. Decree nisi (the court reviews the divorce documentation and determines whether the parties have met the legal criteria for a divorce); and
4. Decree absolute (the final stage of the divorce proceedings which brings an end to the marriage). Decree absolute cannot be applied for until after the period of six weeks and one day has passed since the decree nisi (save in rare exceptions).

Sometimes it is a good idea to move forward with the application for decree absolute at the earliest opportunity, but there can also be good reason to take a pause for thought before making the application…

Does a decree absolute prevent financial claims from being made after it has been made?

Some people are under the impression that decree absolute finalises all aspects of the divorce and therefore prevents any financial claims arising from the marriage from being made. This is not the case. Whilst the decree absolute does indeed end the marriage, it does not prevent financial claims from being made afterwards.

Some couples who divorce on amicable terms and come to a financial agreement think there is no need to do anything further. However, an informal agreement between parties even combined with decree absolute will not prevent a financial remedy claim from being made (or being successful – in the case of Briers v Briers it was found that the parties had not reached a concluded agreement, despite both parties having acted upon it). In the event that you are able to come to an agreement between yourselves with relatively little difficulty, you should revert to a lawyer to have the agreement drafted into a formal legal document that would dismiss any further claims that you may have against one another.

The Family Procedure Rules state that an application for a financial order may be made by Form A at any time after a petition for divorce, nullity or judicial separation. This means that any time after a divorce petition has been filed with the court (including after decree absolute) an application for financial remedy can be made (provided that such an application has not already been disposed of). There is no statutory time limit on financial claims stemming from divorce (although the provision available may be affected by any delay). However, if a party remarries this prevents only that party from applying for a property adjustment order, periodical payments or lump sum provision (although it is still possible to apply for a pension sharing order) for their own benefit. It is noted that this does not prevent applications for the benefit of children.

It is not unusual within family matters for a petitioner to agree not to apply for decree absolute until financial remedy proceedings have been dealt with (for example by undertaking not to apply for decree absolute until there is a sealed court order).

In the event of the divorce being based upon two years’ separation or five years’ separation, the respondent can apply to the court for their financial position to be considered. (to prevent any undue financial hardship that may arise as a result of the decree absolute). Frequently couples will deal with their financial position at the same time as commencing divorce proceedings.

However, rather than utilising the ability to make an application to delay decree absolute, it may be easier in circumstances of two years’ separation to withdraw consent (which is a requirement for the divorce) until such time as the financial matters are sufficiently dealt with and then reinstate consent at that time to move forward with the divorce proceedings. This prevents the decree absolute being made until the respondent’s financial position has been considered.

Applications can also be made to delay decree absolute in cases where the parties may need to dissolve the marriage in accordance with religious as well as civil law. There may be other reasons for a respondent wishing to delay decree absolute (for example where there may be more than one jurisdiction involved), in which case an application may be made to the court to exercise its general powers to delay making decree absolute.

In some circumstances, obtaining decree absolute before financial matters have been resolved can have an impact on the tax position and on the ability to make claims against certain financial assets (such as those that might be held offshore).

It also impacts financial matters upon death. This can be of particular importance where financial matters have not yet been resolved between divorced couples. A decree absolute will affect both parties’ wills to the extent that if either party were to die following decree absolute, then their former spouse would be treated in their will (or under the intestacy laws) as having pre-deceased them (unless there is a contrary intention evidenced in the will).

Decree absolute also means that former spouses are not eligible as widows or widowers to receive spousal pension benefits (and some insurance/death in service benefits). In the event that financial remedy proceedings have not been resolved, this can create a real detriment to the surviving party.

In the event that financial matters have been dealt with and a pension sharing order is made, there is often a delay of 28 days between the sealed order and the application for decree absolute. This is because the pension sharing order can only take effect on the latter of the period 7 days after the expiry for appealing the order (28 days) or decree absolute. Therefore, if the decree absolute is made prior to the period of 28 days expiring and the pension member dies, the pension share will not be implemented and the receiving spouse will not be entitled to any spousal pension benefits. This can create significant difficulties for the intended recipient of the pension sharing order, which may not ever be properly recompensed.

Whilst there is the potential for parties in such situations (subject to meeting certain criteria) to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975, these can be costly proceedings and lead to additional uncertainty, distress and delay.

Conversely, financial remedy capital orders are not effective and cannot be enforced until decree absolute has been made.

Decree absolute extinguishes matrimonial home rights. Under section 30 of the Family Law Act 1996, spouses have a right to enter and occupy the matrimonial home where the property is held in the other spouse’s sole name during the marriage. A matrimonial home right will expire upon decree absolute and be cancelled by the Land Registry unless an application has been made to the court to extend home rights beyond this time.

The decree is therefore not necessarily the end of the story and it is important to ensure that it is not being applied for prematurely or delayed for too long…

If you would like any advice on the divorce process contact me. Please also visit the Family section of our website for further details on the services we provide.