Divorce made simple 10 – Applying for decree absolute as respondent and other issues
This article will assist you to apply for decree absolute in cases where you are the respondent. If you are the petitioner (i.e. the person applying for the divorce), then my other article, Divorce Made Simple 9 should help.
Once your spouse has applied for decree nisi as shown in the earlier articles, in due course, usually a few weeks, you (and your spouse) should receive your decree nisi. In simple terms, the easiest way to remember what decree nisi means is to assume that nisi means “nearly”.
So it follows that the petitioner will need to make the decree nisi, which means you are nearly divorced, into decree absolute, meaning you are completely and finally divorced.
The first thing you need to be aware of whether or not you should apply for decree absolute at the earliest available opportunity or not. This is a technical question that you should consult a Solicitor about.
The advantage of applying for decree absolute straight away is that the matter is done and dusted. However, there are numerous disadvantages in applying for decree absolute straight away, which include helping you to possibly save on capital gains tax in certain circumstances if the finances still need to be resolved.
It is for this reason that the petitioner may not have applied for decree absolute yet and you should check with your spouse, if you can, for their reasons for not applying.
Check the date when decree nisi was pronounced. The petitioner can apply six weeks and one day after that day for decree absolute. Three months after the first day that the petitioner can apply for decree absolute is the first day that you can apply for decree absolute.
Be sure to calculate the dates accurately.
The application form slightly more complicated than it is for the petitioner.
You will need to make an application on notice – this means that you prepare the following documents:
a) an application form and
b) a draft order of the outcome you seek to achieve (ie the divroce)
You can download a copy of the application form from the Justice website here. The form is a D11 Application Notice and is self-explanatory to complete so I will not go into greater detail about that here.
Once you have completed the form and the draft order above mentioned, you will need to submit it with the correct fee (£90.00 as at the date of this article, and if you send a cheque it should be made payable to “HMCTS”).
As always, keep a copy of the cheque if you are paying by cheque, and keep a copy of the application itself. The courts do lose a lot of paperwork and you may need to trace back to when you sent the application and check if the cheque was cashed.
The courts have been known to say they did not receive the paperwork and yet managed to cash the cheque!
As long as no more than 12 months have elapsed since decree nisi when you make your application for decree absolute, the court will list your case for a short hearing initially, probably 30 minutes or less, and return all the paperwork to you duly sealed with the date of the court hearing. If more than 12 months have elapsed, then please see Divorce Made Simple 9 for the procedure that must also be followed.
You will need to turn up to court on that day, as will your spouse.
You should promptly arrange to serve the papers you have received by post, but if you think your spouse will be difficult – you could serve by personal service of documents (which I refer to in greater detail in Divorce Made Simple 4 and Divorce Made Simple 5).
At this point it would be useful to instruct a Solicitor who can commence negotiations on your behalf to try to compromise the matter and see if a court hearing can be avoided at all.
Costs are never guaranteed, but in this sort of application, unless the petitioner had very good reasons, the court is likely to exercise its discretion in your favour and award you the costs you have incurred by instructing a Solicitor anyway.
When the court hearing date arrives, ensure that you are there in good time, and when called to appear before the Judge, explain what application you and making and why.
Realistically, if your case gets this far, I would suspect it would be far better to instruct a Solicitor to attend court on your behalf to ensure that your position is fully protected. You may be entitled to claim the costs of instructing the Solicitor from your spouse anyway.
This 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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