Divorce Made Simple 7 – The Decree Nisi Hearing
Once you have received the Acknowledgement of Service form from the Court, as I have explained in detail in 6A and 6B of this series of blogs, you will then make an application for decree nisi as explained in the same blogs abovementioned.
The Courts will grant you two Certificates as follows:
(a) A Certificate of entitlement to a decree of divorce
This is a Certificate which effectively states that the Judge has looked at all the paperwork without either party having attended Court and the Judge is satisfied that all the procedural and legal requirements have been attended to.
In simple terms, procedural requirements are that the divorce petition was prepared properly and accurately and that it complied with the requirements for it being completed and that it was served upon the respondent (the person you are divorcing) and there is evidence that the respondent received the Acknowledgement of Service form and that they have stated they do not intend to defend the case.
The legal requirements in simple terms are that you have met all the legal requirements of jurisdiction, that the correct Fact (ground for divorce) has been made and that you have satisfied the Judge that the allegations that you made in your Statement of Case are sufficient to warrant your divorce.
This is the first of the two ticks, so to speak, that you require to proceed onto decree nisi.
(b) You will also receive a Certificate for Section 41 purposes. This Certificate will either state:
(i) That you do have children to whom the Court must have regard but that the Judge considers that the arrangements that you have made for your children, as stated in your statement of arrangements for children, do not show any “exceptional circumstances” why the Court should get involved. The important word there is exceptional circumstances. So if the Court did have some concerns, they will simply grant this second Certificate in any event. The Court takes the view that they will make no order in relation to children unless it is better to make an order. They therefore have a policy that unless something is obviously wrong that they will not intervene. Alternatively,
(ii) That you have do NOT have children. This may apply because you have children who have reached majority or simply the fact that you have no children in any event.
You could get a situation where the Judge would not be able to grant you the first Certificate, i.e. the Certificate of entitlement to a decree of divorce, because you have not complied with the procedural rules or, in the alternative, that you have not met the legal rules – for example, that if you are proceeding on a behaviour petition that the behaviour of the respondent is so unreasonable that you cannot reasonably be expected to live with the respondent because of that behaviour.
The same can happen with the second Certificate where the Court is not satisfied with the arrangements for the children because exceptional circumstances have arisen which give the Court concern.
In these circumstances, the Court will usually either:
(a) Write to you as the petitioner (the person applying for the divorce) and ask you to clarify the matters and usually in this case this is by way of a letter; or
(b) They may ask you to file a statement clarifying the position or correct, say, errors on the face of the documentation etc; or
(c) In the least usual case, and this does not happen very often but can happen, the Judge may ask you and the respondent to attend Court to explain your positions respectively and then deal with the problem accordingly.
Assuming that you have received your Certificates, the Court will automatically at the same time also provide you with an order which states the date when the decree nisi hearing will take place.
The decree nisi hearing, unless there is a claim for costs, is a mere formality.
If there is no claim for costs neither party needs to attend.
In theory at least, several days after decree nisi both parties will receive the decree nisi. This is the penultimate stage of a divorce and there is only a little bit more work to be done after this to finally obtain your divorce.
If there is a claim for costs, then you should read the next blog, Divorce Made Simple 8, for further details in that regard.
The information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitor before decisions are made and before you embark on a certain course of action.
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© Shak Inayat 2013