DIVORCE procedure, like most things, is relatively straightforward so long as you understand the process so that mistakes are not make along the way.
One very important difference to know is the difference between Decree Nisi and Decree Absolute.
The first stage, once a decision has been made that the marriage has irretrievably broken down, is to draft a petition of divorce. It is best to send a copy of the draft to the other party for agreement before it is filed at court since this helps avoid the proceedings being opposed, but ultimately if agreement cannot be reached that does not stop the petition being filed.
The responding party confirms if the petition is to be opposed or not on an acknowledgment of service form, which is sent with the petition from the court.
On the basis that the petition is not opposed, the petitioner completes an application form and a statement in support, which provides the opportunity to rectify any minor errors in the petition, confirm details of the circumstances of the parties’ separation (in brief) and if an order for costs is sought against their spouse.
The court then considers if all the necessary information and paperwork has been provided, and is procedurally correct, and, if so, sets a date for declaration of Decree Nisi and for the making of any appropriate order for costs.
Decree Nisi is pronounced in open court. It is unnecessary for either party, or their legal representatives, to attend unless the pronouncement of the decree is opposed for some reason, and/or object to an order for costs being made.
Decree Nisi confirms the petitioning party is entitled to a divorce and allows the court to make a final order in respect of the financial aspects of the marriage.
However, it does not end the marriage.
Decree Absolute, which does end the marriage, can be applied for by the petitioner six weeks and a day afterwards, but the other party may only apply for it three months after that and the procedure is more complicated and long winded.
Decree Absolute is a significant step and has important implications that go beyond allowing both parties to remarry.
It might be best to wait until a financial settlement has been finalised by order of the court before Decree Absolute. There are various reasons why:
Pension benefits: If an ex-spouse dies after Decree Absolute, and no pension sharing order has been made in favour of the survivor the survivor will lose any spousal pension benefits as a widow or widower.
Wills: Decree Absolute will make any provision for an ex-spouse to receive a gift, or to be appointed executor or trustee of the other ex’s will ineffective. However, it would not prevent a claim by the surviving ex-spouse against the estate, potentially, under the Inheritance (Family and Dependants) Act 1975 as a former spouse.
Occupation of property: If the family home is in the sole name of one party the other non-owning ex-spouse will lose all rights of occupation on Decree Absolute, unless their continue occupation is agreed, or an order is made allowing their continued occupation by the court.
Re-marriage: If an application for a financial order has not been made in the divorce petition, or by a separate application to the court, and you remarry, you will be barred from making an application for spousal maintenance, a lump sum, or a property adjustment order. Also, if you were receiving spousal maintenance from your ex-spouse you would no longer be entitled to receive it.
I hope this brings some clarity where before there may have been some doubt.
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Anita Garside-Slinger is an Associate Solicitor with Ringrose Law, Castlegate, Newark (01636 594460). She is a member of the Law Society Accreditation Scheme, and Resolution.