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Decree Nisi & Decree Absolute

This is a document that confirms that the Court are satisfied that the marriage has broken down and can be finalised upon the making of a Decree Absolute.

Procedure

There is only one ground for divorce and that is that the marriage has broken down irretrievably. The person who starts the divorce proceedings is known as the “Petitioner” and his/her spouse is called the “Respondent”. To satisfy the Court that there has been an irretrievable breakdown the Petitioner must prove one of the following 5 facts:-

(a) The Respondent has committed adultery (this does not apply to same sex marriages)
(b) The Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent.
(c) The Respondent has deserted the Petitioner for a continuous period of at least 2 years immediately before the start of the divorce.
(d) The parties to the marriage have lived apart for a continuous period of at least 2 years immediately before the start of the divorce and the Respondent consents to a Decree being granted.
(e) The Parties to the marriage have lived apart for a continuous period of at least 5 years immediately before the start of the divorce.

Subsequent Procedure:

The Court will send copy of the petition to your partner together with an Acknowledgement of Service Form. This form must be completed and returned to the court which proves service of the Petition.

Defended divorces are rare but if a respondent indicates an intention to defend the petition then the form should be returned to the Court within 8 days. An Answer to the Petition will state that they object to the divorce or they dispute facts in it and this is done within 28 days of receiving the Petition. It is rare for divorces to be defended and extremely costly.

Should the Acknowledgement form not be returned then your partner may need to be served personally. Once the petition is served or an acknowledgement form received you can apply for your Decree Nisi. A date for this to take place will be fixed by the Court. This is the point at which the District Judge looks at your Petition and decides whether you are entitled to a divorce.

If an Answer to the Petition is filed you will not be able to apply for Decree Nisi immediately, instead upon application the Court will list a Case Management hearing to consider how the case should proceed.

Once the Decree Nisi has been pronounced you can make your application for the Divorce to be finalised six weeks afterwards and it usually takes 7 – 10 days for the Decree Absolute to be received. You should be consider taking advice from a divorce solicitor at matrimonial and whether you should withhold making an application for the Decree Nisi to be made Absolute until your financial matters have been resolved.

In all, the divorce can take as little as 4 – 6 months from start to finish. In some cases this takes longer if your divorce is defended or there are complex issues to resolve relating to financial and property matters.

Even when there are no financial property or pension issues to deal with and you have no issues regarding your children you should never proceed to finalise your divorce proceedings without taking expert advice even if you are both agreed on all matters, it important in all cases to reflect an agreement in a court order and to consider having a “clean break” order to ensure that neither of you can claim upon the other in the future if your financial circumstances change. You may be lucky and have a windfall such as a lottery win – consider how you would feel if your ex partner decided to make a claim after your divorce is final!

In all circumstances, we recommend speaking to one of our experienced team at BF Matrimonial. Call us on 0800 246 5147 today.

Separation:

If you would prefer not to divorce at this stage but wish to regularise your separation maybe to resolve issues relating to children or financial matters, there are two options available:-

1. Judicial Separation Petition
2. Separation Deed.

Judicial Separation
This involves a Court procedure which is virtually identical to that which applies to a divorce. The essential difference is that the Court pronounces a Decree of Judicial Separation rather than a Decree Nisi which means you would remain married.
This process is normally only used when the parties have religious or cultural objections to divorce which is rare but this process allows the court to use its powers to deal with financial matters.

Separation Agreement
Many couples prefer to reach an agreement about financial matters arising out of their separation without involving any Court procedures at all particularly if they agree to separate for 2 years and divorce in the future knowing that all financial and property issues have been agreed. The way that this can be achieved is for them to sign a written legal document which incorporates the agreement they have reached. Commonly, such agreements deal with confirmation that the Parties to the marriage are to live apart and the manner in which maintenance and all property matters are to be dealt with. An agreement can be reached regarding any sharing of pensions but remember that pension sharing cannot take place until the divorce is finalised and a consent Order is made reflecting the agreement. Whilst there are no restrictions on what can or cannot be included in such an agreement, it is important to bear in mind that should either person make a subsequent financial application to the Court, the Court is not necessarily bound by the financial arrangements contained in the Separation Deed but if both parties have had the benefit of independent legal advice then it is likely to uphold the terms of the agreement. You will need expert advice on the careful drafting of a Deed so that it can be relied upon in the future. The team at matrimonial have considerable experience in drafting these documents.

Cancelling Proceedings / Attempts at Reconciliation
Starting divorce proceedings does not mean that you cannot attempt to reconcile with your spouse, always provided that a Decree Absolute has not been applied for. A reconciliation period of less than six months only puts the divorce proceedings on hold, it does not stop them. If your reconciliation proves to be successful you will need advice from matrimonial as to the dismissal of the proceedings and the return of your Marriage Certificate. However, if you reconcile for more than 6 months and the marriage then breaks down again you would have to file a supplemental Petition or cancel the previous proceedings and start again. You will need expert advice on this procedure and should contact us at matrimonial on 0800 246 5147