Can I delay my decree absolute to finalise financial remedy matters?
Posted on 13th July 2020
Obtaining Decree Absolute in Divorce dissolves the marriage. It is the final Decree or Order of the Court. A Decree Absolute is normally applied for six weeks and one day after the date of Decree Nisi. This is upon the application made by the Petitioner who started the divorce. If the Petitioner fails to apply for Decree Absolute within this timeframe then the Respondent can apply for the Decree Absolute three months after the expiration of the six weeks and one day.
The divorce can be finalised before financial matters are resolved or even before they have started. However this is not advisable.
In fact, the strong and clear advice is that if there are any financial matters that need to be resolved and determined, even if you are mid proceedings, you should delay obtaining Decree Absolute. This is to ensure that spousal rights are protected as the Decree Absolute of Divorce dissolves the marriage and you are no longer a “spouse”. Examples where one party may want to delay the pronouncement on Decree Absolute would be where there would be difficulties in claiming under a pension scheme or where you would lose rights, such as widow or widower’s rights after death, to claim as a spouse.
There is a presumption in favour of granting a Decree Absolute unless the party opposing can show that there are “special circumstances” to delay the same and financial matters that are still yet to be determined can, depending on the circumstances of every case individually, amount to such special circumstances.
In the case of Thakkar v Thakkar, which is still good law from 2016, the Respondent Husband made an application for Decree Absolute as the wife made it clear she would not be doing so until conclusion of financial matters. The judge dismissed the husband’s application for Decree Absolute as the wife was able to show that she would be prejudiced financially if Decree Absolute was granted.
If a party seeking to delay Decree Absolute can show the granting of the same would cause them financial detriment then this may be enough to delay Decree Absolute.
It is usual good practice to obtain an undertaking at the beginning of the divorce proceedings that the application for Decree Absolute will not be made until the conclusion of financial remedy matters. Once finances are resolved, whether by way of a Consent Order i.e. agreement between the parties or a final Order of the Court after a final hearing (Trial) it is usual at that point to immediately apply for Decree Absolute. Decree Absolutes are pronounced quickly by the Court, they are usually turned round within a week.