Can I delay my decree absolute to finalise financial remedy matters?
Posted on 6th December 2016
It is common misconception amongst many litigants that the divorce can only be finalised once all financial matters have been resolved. In actual fact the divorce can be finalised before financial matters are resolved or for that matter before they have even commenced.
A decree absolute, finalising the divorce, is normally granted 6 weeks and 1 day after the date of the pronouncement of the decree nisi, which is the midway point of the divorce procedure. This is upon an application made by the petitioner. However, if the petitioner fails to apply for decree absolute within this time frame then the respondent can apply for the same 3 months after the expiration of the 6 weeks and 1 day time frame.
If there are financial matters that need to resolved, even if you are mid-proceedings, it is advisable to delay the pronouncement of the decree absolute to ensure spousal rights are protected. Examples where one party may want to delay the pronouncement of decree absolute would be where there would be difficulties in claiming under a pension scheme or where they would lose rights due to death, to claim as a spouse. However, unless this is by agreement of the parties, the presumption is strongly in favour to grant the decree absolute unless the party opposing this can show that there are ‘special circumstances’ to delay the same.
In the recent case of Thakkar v Thakkar  EWHC 2488, the respondent husband made an application for the decree absolute as the wife had 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 argued that the husband held undisclosed offshore assets. In this instance it was held that the wife had established ‘special circumstances’ as it would inevitably be difficult for the wife in establishing the extent of such assets and enforcing any orders as a former wife. In essence the wife would be prejudiced if the decree absolute was granted.
However, this is an exception and the presumption is always strongly in favour of the granting of the decree absolute. There is a very high threshold to meet for those opposing the granting of the same. Whilst delaying the decree absolute is very much an exception, if the party seeking the delay can show the granting of the same would cause them financial detriment, then this may be enough to delay the same.
In light of the above and the fact the courts will only authorise a delay in the granting of a decree absolute in very special circumstances, it is good practice to obtain an undertaking at the outset of any divorce petition being issued. An undertaking should be sought from the petitioner/respondent that an application for decree absolute will not be made until conclusion of financial remedy proceedings. If no undertaking is forthcoming then it is for the legal representative to act diligently in ensuring that any necessary applications are made to the court in good time.
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