Decree Nisi vs. Decree Absolute: What’s the Difference?

April 30, 2021 Admin 3 Comments

Courts across the country are facing a significant backlog of divorce petitions, and the COVID-19 lockdowns have only exacerbated this issue. As a result, many individuals are left wondering if it is possible to obtain a quick divorce. Unfortunately, the reality is that there is no such thing as a truly quick divorce. The process typically takes around 6 months to a couple of years, depending on the specific circumstances of each couple. The misconception of a quick divorce is often fueled by media reports of celebrity couples finalising their divorces in a matter of days. However, what the media highlights is often just the granting of the “decree nisi,” which is only one step in the entire divorce process. It’s essential to consult with a family law solicitor who can provide guidance and manage your expectations throughout the divorce process.

What is a decree nisi?

Basically, decree nisi, which comes from a Latin phrase that means ‘rule, unless’, is an order granted by the court, confirming that the grounds for divorce have been met, or in other words, based on the evidence provided, the court is satisfied that the marriage in question is irretrievably broken. Note that decree nisi doesn’t end the marriage but it indicates when the marriage will end unless the couple produces a good reason not to grant the final divorce. Decree Nisi marks the midway stage in divorce proceedings, which means that the couple will remain married until the divorce is finalised, which is done by granting of a Decree Absolute certificate.

What is the importance of a decree nisi?

Normally, when a divorce petition is being processed in the court, the couple is also negotiating a potential financial settlement or may have petitioned the court to determine how their assets should be divided. Now, until a decree nisi has been issued, the court can’t approve or make a legally binding financial settlement decision. So, it is important for the couple to reach a financial agreement while the divorce petition is still progressing in courts, as it will ensure that the divorce is finalised amicably and as soon as possible. For that to happen, a decree nisi will be necessary.

When can I apply for a decree nisi?

As long as the respondent has not indicated any intention to defend the case, then the petitioner can go ahead and apply for a decree nisi and must provide a supporting statement that confirms the initial petition’s contents. If the respondent wishes to defend the case, he or she must notify the petitioner and the court within 7 days from the day they were served. The respondent will file a document known as the ‘acknowledgment of service’. Immediately after filing this document, the respondent has 21 days to respond to the case, and explain why they chose to defend the case. If no answer is provided, then the petitioner can then proceed with the application of the decree nisi.

Before granting a decree nisi, the judge must be fully satisfied that all the necessary procedures have been complied with. For instance, the relevant time periods must have lapsed; the petition is undefended, and, consent is provided wherever necessary. You will also have to convince the court that the marriage has been irretrievably broken. If the court is completely satisfied with the evidence provided, then the judge will file a certificate that entitles the petitioner to a decree nisi and arranges a date when the decree will be read out in court.

But if the judge isn’t satisfied with the case and the evidence provided, he or she may ask for more information or arrange a hearing where decisions on the management of the case are made.

How long does it take to get a decree nisi?

Due to the several procedural steps present in a divorce petition, you can’t say exactly how long it will take before you get a decree nisi. However, in a typical undefended case, the timelines might look like this:

  • The petitioner files for a divorce in a court
  • After 3-4 weeks, the petition is served to the respondent
  • 7 days later, the respondent files an acknowledgment of service
  • Then the court sends a copy of the acknowledgment to the petitioner. But if the respondent didn’t file the acknowledgment, then the petitioner can try alternative service, in person or through a court bailiff.
  • After that, the petitioner applies for a decree nisi, which is done alongside a supporting statement with the initial petition and sends it to court.
  • The judge considers the evidence. This may take several weeks to a couple of months – might be 3-4 months.
  • The judge then confirms the date for decree nisi
  • Pronouncement of decree nisi in the courtroom
  • After that, six weeks and one day after decree nisi, the petitioner is allowed to apply for a decree absolute. It then takes a week after the application for the decree absolute to be pronounced.

In an undefended divorce petition, a decree nisi should be granted within 4-6 months, with a decree absolute granted 6 weeks later.

What is a decree absolute?

We have mentioned ‘decree absolute’ a couple of times above, but what is it exactly? A decree absolute is a final order that confirms the end of a marriage. It’s basically the final process of being legally divorced.

Decree nisi and decree absolute are totally different. Many people often feel that both decrees are the same, and that couldn’t be further from the truth. A decree nisi confirms that the court is satisfied with the petition, meaning that you can now legally divorce, while a decree absolute confirms the official dissolution of the marriage. Once a decree absolute is granted, you will be officially divorced. Now, both decrees operate hand in hand, as you can’t apply for a decree absolute without a decree nisi.

How can I apply for a decree absolute?

Now that you know what a decree absolute is, you might be wondering how you can apply for it. As we mentioned above, you can only be able to apply for a decree absolute after being granted a decree nisi. After decree nisi, you will have to wait for 43 days, before you can apply for decree absolute. To apply, just make an application with the court within the required timelines, and if you delay for a long time – more than one year – before you apply, you will need a statement explaining the reasons for the delay. It is in fact a pretty straightforward process, as much is not required. Once you submit your application, together with a fee, the judge will usually seal and issue a certificate of decree absolute.

However, it is important to note that there are circumstances where the petitioner is reluctant to apply for decree absolute. They include emotional issues, which may be a result of the marriage ending, or financial issues that are yet to be resolved. So it is important that you ensure everything is in order, before the application. Moreover, there are situations where the petitioner rushes to apply for a decree absolute, including when the partner is likely to be declared bankrupt, or when there is a child expected with a different partner. All these are crucial elements that should also be considered before obtaining a decree absolute.

Who applies for a decree absolute?

A decree absolute can be applied for either by the petitioner – the applicant – or the respondent. However, the time limits within which the application can be made varies depending on the party that makes the application. If it’s the petitioner applying, then they can do so 6 weeks and one day after decree nisi, and if it’s the respondent applying, they can do so 3 months after the date the petitioner could have applied for it.

How long does it take to get a decree absolute?    

Once you are done filling and submitting your decree absolute form, the court only takes 2 to 3 weeks to finalize the divorce. After that, the court will send a decree absolute certificate, which will confirm that you are officially divorced. The certificate will be sent to both parties to the divorce. What’s more, this certificate is quite important going forward, as you will be required to produce it as evidence in case you want to marry again, to prove that you are legally divorced. So, it’s important that you keep this certificate safe, and in the event you misplaced it, you can obtain a replacement from the court where the divorce took place.

What happens if my partner and I reconcile our differences and decides to stay together?

It is possible that, after the divorce has been finalised and the decree absolute granted, you and your partner decide to get back together. If this is the case, you will need to marry again. As per the law, once the decree absolute certificate is issued, the divorce is final, and that means you are no longer a married couple under the law.

Can I get a decree absolute without a financial settlement?

Yes, you can get a decree absolute even without financial settlement. Why? Well, because in divorce proceedings, the divorce itself and financial settlements are considered to be two different issues. A decree absolute seeks to terminate the marriage between two people, but on the other hand, a financial settlement seeks to terminate any financial ties between the two individuals and determines what each one gets. Having said that though, it’s not advisable for you to obtain a decree absolute if you haven’t resolved your financial situation, as it can affect entitlement to some assets.

For instance, if, as a married couple, you have a pension fund, trust fund, or any other complicated assets, it is highly advisable that you don’t get a decree absolute before reaching a settlement. The reason being, such assets are only transferred to spouses, and that means once you get a decree absolute, of course, you will no longer be married, meaning that you will lose entitlement to such assets.

Moreover, there are partners who rush to obtain a decree absolute to move on with their life and remarry. Well, that’s totally fine! But if you haven’t reached a financial settlement, you might lose some or all your rights to claim any asset from your former spouse. It also means that if the partner dies, the surviving partner loses any automatic spousal benefits that you would have otherwise enjoyed. Other implications might include tax charges on the transfer of the assets, where if you are still married there would no charges, but once you are separated, you certainly incur charges.

Ultimately, yes, you can obtain a decree absolute, without reaching a financial settlement. But you must be very careful in doing so, as you might be surrendering your rights on the assets.

After the decree absolute have been granted, you still need to consider the following:

  • If there was a Will that read your former partner as the next of kin, you might want to have that changed. In fact, any provision for a former spouse in the Will fails after the divorce is finalised, unless it was to last past the decree absolute. Additionally, when you remarry, the previous Will will be invalid.
  • If you want to change your status on your critical documents such as your passport, and driving license, you might also want to have that changed. Otherwise, you might have issues either with the insurance companies or the other relevant agencies, as time progresses.
  • You also need to update the information on your insurance policies, including motor insurance, household insurance policies, and life insurance policies. Failure to do so could void your insurance.
  • Any joint bank accounts should also be closed. After all, it’s not wise to keep them. As for all your bank account details as well as your credit card accounts – you need to have them updated.
  • Finally, update your details on your utility bills. You can also notify your family and friends of your new contact details.

*Disclaimer: This website copy is for informational purposes only and does not constitute legal advice.
For personalised legal advice tailored to your specific circumstances, book an initial consultation with our family law solicitors HERE.

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