Divorce made simple 9 – Applying for decree absolute
This article will assist you to apply for decree absolute in cases where there are no complications and you are the petitioner. If you are the respondent or problems have arisen, then my other article, Divorce Made Simple 10 should help.
Once you have applied for decree nisi, as shown in the earlier articles, in due course, usually a few weeks, you 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 you 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.
Check the date when decree nisi was pronounced. You can apply six weeks and one day after that day for decree absolute if you are the person divorcing your spouse (i.e. you are the petitioner). Be sure to calculate the date accurately.
The application form is a simple one. You can download a copy from the Justice website here. The form is a D36 Notice of Application for Decree Nisi to be Made Absolute and is self-explanatory to complete, so I will not go into greater detail about that here.
Once you have completed the form mentioned above, you will need to submit it with the correct fee (£45.00 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 process is a formality and you should receive, fingers crossed, your decree absolute in a matter of days.
If you have not received it in say 2 weeks, you should chase the court as something will have probably gone wrong.
More Than 12 Months Elapsed Since Decree Nisi
If more than 12 months have elapsed since pronouncement of decree nisi before you wish to apply for decree absolute, you will need to send a detailed covering letter to the court to explain the following:
a) The reason for the delay in applying for decree absolute
b) Whether you have at any time resumed cohabiting with your spouse (even if for a short period)
c) Whether a child has been born to either party since filing the petition, and if so, is it a child of the family (this is a legal definition so you should make sure you give full facts to the court in any event and that will help the court to decide if you cannot decide if the child so born is a child of the family or not).
You should submit this detailed letter with your application and the above mentioned fee, and in due course, subject to the courts not having any significant concerns, decree absolute will be granted.
If the court is unsure, or has concerns they may ask you to file a statement known as an affidavit, to explain yourself in greater detail and may list your case for a directions appointment (mini hearing) to clarify certain aspects of your letter, which led to the concern in the first place.
If the court does raise these issues, it would be wise to instruct a Solicitor to draft the reply for you or represent you for the remainder of the divorce.
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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