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HCR Law Events

27 September 2021

To apply or not to apply; the precise timing of your decree absolute

Anybody going through a divorce, or who has been divorced, knows that the end of the process comes when your decree absolute is granted, and the marriage is officially dissolved.

You can apply for the decree absolute six weeks and one day after the decree nisi has been granted, or 12 weeks and one day after decree nisi if you are the respondent in the divorce.

Once decree nisi has been reached, it is more than likely that you’ll have started, or even resolved, financial matters arising from your divorce. It is understandable that you will be eager to finalise the divorce as quickly as possible, especially if there have been any delays along the way.

Although in most cases, the pronouncement of the decree absolute will not cause any financial implications, it can leave you in a disadvantaged position if it is granted prematurely before financial matters are resolved and fully implemented.

 

Matrimonial home rights

If your family home (known during the divorce as the former matrimonial home) is registered in your spouse’s sole name, it is highly likely that a Home Rights Notice will have been issued with the Land Registry to prevent your spouse from selling the property without you being notified.

This will cease upon the granting of the decree absolute, and you will lose this vital protection. This can obviously be detrimental, especially if an agreement has not been reached regarding your interest in the property. The Home Rights Notice can be extended past the pronouncement of the decree absolute, but this could involve further litigation and expense.

If a Home Rights Notice has not been registered over the property and you feel this protection is required, do take legal advice.

 

Death of your spouse

If the decree absolute has been pronounced at the time of your spouse’s death, but financial matters are not resolved, this could mean you will have lost certain inheritance benefits and entitlements which you had as a spouse. It may therefore be crucial to protect your interest by delaying the application for decree absolute until financial matters have been concluded and there is a court order.

Whether made by consent or in contested proceedings, a financial order is only enforceable upon decree absolute. So, if your spouse dies after the order has been made, the order is not enforceable before the decree absolute is pronounced.

Conversely, if you are still married at the time of your spouse’s death, their estate will be distributed in accordance with their will or under the intestacy rules if they have no will. If your spouse does not have a will, then as their spouse, you will inherit their entire estate if you have no children. The rules differ if you do have children.

The rules relating to inheritance as an (ex) spouse are complex, and you may need specialist legal advice on this.

 

Pensions

If you are claiming a share of your spouse’s pension, the timing of the application for the decree absolute is very important.

A Pension Sharing Order comes into effect either when the decree absolute is pronounced or 28 days from the date of the Pension Sharing Order (the date the court approves the Order), whichever is the later. Therefore, if the decree absolute is granted and your spouse dies within 28 days from the date of the Pension Sharing Order, then the order will fail.

Also, as an ex-spouse, you will lose your entitlement to a widow/widower’s pension upon their death; this could be substantial depending on the type of pension paid into by your spouse.

 

Financial negotiations

On a practical note, if you are the petitioner and your spouse is keen to finalise the divorce, it can be a useful incentive to advise your spouse that the decree absolute will not be applied for until the court has approved a financial order.

This can be helpful to focus everyone’s minds on reaching a financial agreement and concluding matters as quickly as possible.

The risks will, of course, differ in every circumstance, but before applying for the decree absolute, we recommend you seek specialist advice to ensure your financial position is protected as much as possible.

While not applying may delay the process slightly, it will undoubtedly reduce the risk of suffering disadvantage and unnecessary hardship in the long term.

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About the Author
Cathryn Harper-Tedstone, Solicitor

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