The court will not make the decree absolute automatically after six weeks have elapsed since the pronouncement of the decree nisi – it has to be applied for, usually by the petitioner but occasionally by the respondent.
The petitioner can apply for the decree absolute after six weeks have elapsed from the date of the pronouncement of the decree nisi. Note the word ‘after’ – the application cannot be made before six weeks have elapsed even if it reaches the court after that date. The simplest rule of thumb is don’t make the application until six weeks and one day after the decree nisi. The application is made by filing with the court a simple notice of application for decree nisi to be made absolute form (see Appendix 1), together with the £40 court fee.
When the application for decree absolute is filed, the court will check its records to ensure that it can make the decree absolute. The following does not include everything the court checks, but some points are worth noting before filing the application so that it is not wasted:
1 A decree nisi can be set aside (or rescinded) in several different circumstances, for example on the application of the respondent to a two years’ separation divorce where they were misled by the petitioner in giving their consent to the divorce, where the decree was issued in error or where a reconciliation has been effected. The court will not allow the decree nisi to be made absolute where an application for rescission of the decree nisi is pending.
2 The decree nisi cannot be made absolute where the court has not yet considered the arrangements for any children or has directed that the divorce should not be finalised until it is satisfied with the arrangements for the children – see above.
3 As mentioned above in the section on completing the acknowledgement of service, in a divorce based upon two or five years’ separation the respondent can make an application asking that the divorce be delayed until finances have been resolved. Obviously, the decree nisi cannot be made absolute until any such application has been dealt with.
Whether or not the divorce is based upon two or five years’ separation, you may wish to delay applying for the decree absolute until finances have been resolved. In fact, this occurs in the majority of cases. The primary reason for this is again loss of pension rights when the divorce is finalised. If you are in any doubt as to whether you should delay finalising the divorce until the financial settlement, then obviously you should not apply and you should seek legal advice.
Sometimes there can be a long delay between the pronouncement of the decree nisi and the application for the decree absolute, especially if it has taken a long time to sort out the financial settlement. If more than 12 months have elapsed since the decree nisi then, in addition to the application for decree absolute, you will also need to lodge a letter with the court stating:
1 The reasons for the delay, for example, that you were waiting until a financial/property settlement had been reached.
2 Whether you and the respondent have lived with each other since the decree nisi and, if so, between what dates – remember the rules on living together, mentioned above.
3 Whether, if you are the wife you have, or if you are the husband you have reason to believe that your wife has, given birth to any child since the decree nisi. If so, you must give details and state whether or not it is alleged that the child is or may be a child of the family.
If the court is not satisfied with any of these matters then it may require you to file an affidavit verifying what you have stated, and may make such order as it thinks fit. Again, you may need to seek legal advice if this is the case.
If you are the respondent and the petitioner does not apply for the decree absolute, then you may yourself apply after three months from the earliest date when the petitioner could have applied (that is, six weeks plus three months from the date of the decree nisi). Note, however, that such an application cannot simply be dealt with through the post, as can an application by the petitioner – a hearing would be fixed for the court to consider the application. Once again, in this instance you should seek legal advice.
Lastly, note that if the divorce is proceeding on the respondent’s cross-petition (see below) then, when it comes to the application for decree absolute, they are in the position of the petitioner so far as everything I have said above, and the petitioner is in the position of the respondent. Accordingly, the respondent could then apply for the decree absolute six weeks after the decree nisi, and the petitioner would have to wait another three months.