How Can Mediation Help Me With My Divorce?

Going through a divorce is extremely upsetting for everyone involved and finding a way to get through it with as little emotional fall out as possible has to be a good way forward. If you do decide that you want to make the process as non-adversarial as possible, then mediation may be the right choice for you and your ex-partner.

Going to court to decide on contact arrangements for the children and the splitting of assets will prove to be an expensive and time consuming process. Mediation has been designed so that you both have a chance to avoid that whole situation and to just sit down in a room and decide for yourselves with the help of a mediator.

Since April 2011, every couple who is getting divorced has to consider mediation, apart from cases of domestic violence or cases with child protection issues and the benefits are clear. In mediated divorce cases, the divorce was settled within half the time of divorce cases which had to go to court.

So what is mediation and how can it help you?

Mediation is where you and your ex-partner will meet alongside a third party, your mediator, who will listen to both sides and then help you to reach an agreement on all of the important decisions you need to make about your divorce. These may include access arrangements if you have children, maintenance payments, your property and all of your assets too.

You don’t need to worry about what will happen if you cannot reach an agreement during mediation either, because mediation is not the end of the road. If you cannot reach agreement at mediation you simply go to court to get a judge to decide for you instead.

You will not lose out by using mediation, but you may be able to get through your divorce more quickly and with less confrontation, so it could be worth trying first. Mediation will not work for everyone, but if you think it may work for you, you should contact a specialist family law solicitor who will be able to help you with this.

For more information about this article or any aspect of our family law services, please call us on 0333 34 44 54 8 and we will be delighted to help you (there is no charge for initial telephone discussions).

 

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.

Shak Inayat

Solicitor

0207 183 2898

Dismissing Financial Claims to Finality

Dismissing Financial Claims to Finality

Vince v Wyatt [2013] EWCA Civ 495

 

This article is part of a trilogy of articles – you may wish to read this in conjunction with “Closing the Door on the Past” and “Vince and Wyatt – Electric Shock for the Unwary”

I regularly meet people who often boast that they were able to deal with their divorce without the need for a Solicitor to be involved and they go to great pains to elaborate on how much that has saved them in legal fees.

I personally find it curious to be frank. On such an important issue, they are resorting to DIY divorces. I think this I – can – do – it – myself – attitude will in many, many cases end in tears. That is certainly my experience of it. I know for a fact that no matter how easy it seems to undertake an appendectomy I would rather always have a surgeon performing that operation. Ok, so conducting a divorce is not as complicated as surgery but I make my point by saying that I would not repair the brakes on my car even though is possible.

Whinge over and onto the legal stuff.

Most people when they undertake their own DIY divorce often with a divorce pack bought off the shelf for 49p is that they assume that the conclusion of the divorce, that is, obtaining decree absolute, is the conclusion of all matters between the parties.

Leaving issues relating to any children aside, what about the finances?

So the smarter ones will consider the financial issues that need resolving between the parties and come to an amicable arrangement. So far so good.

They then write in their best handwriting the terms of that agreement (and I will not even go into the nightmares that can produce) and they both sign it. The very smart ones will even have it witnessed by the next door neighbour.

The problem with that (Vince v Wyatt being a developed exception to that) is that the agreement is almost not worth the paper it is written on so to speak AND can create legal nightmares that need sorting when (and invariably it is “when” and not “if”) a dispute arises of over interpretation or a while plethora of other reasons.

First and foremost the parties cannot bind a court and so the agreement is not really legally binding.

Imagine this scenario: The parties do a DIY divorce, then they write up an agreement on the finances and both sign and have it witnessed. One party decides years later that they are not happy with that agreement – what is to stop them issuing a financial claim to conclude the financial part of the divorce (known as financial remedy)? Well, the reality is not a lot is stopping them.

There are some technical niceties which I will not elaborate on here (such as what is known as a Xhydias Agreement which could alter the general position that I am espousing but you get the main drift of what I am trying to convey).

The reality is that you need to end the marriage by way of a decree absolute of divorce (we all know that) AND you need to end the financial relationship by way of a consent order (if everything is agreed on the finances). Only a court can bring the financial part to a conclusion.

It is precisely for this reason that Ms Wyatt made her claim for financial remedy around two decades later and WON her case (in simple terms at the first shout and lost only on appeal because of the tenacity of Mr Vince.

The outcome of that case and what you would probably undoubtedly wish to achieve too, would be for each party never to be able to make a further claim against the other whether during their lifetime or even after their death.

(Yes, even after death a spouse or FORMER spouse can make a claim against the estate of their deceased spouse/former spouse).

To close these doors as I call them, as most would say to make the deal “in full and final settlement” you need that consent order dismissing all claims each party has against the other.

I am not sure you will find that in a DIY pack for 49p.

The moral of the story is that Mr Vince found out the hard way; do not make the same mistake.

 

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.

Shak Inayat

Solicitor

0207 183 2898

Closing the Door on the Past

Closing the Door on the Past

Vince v Wyatt [2013] EWCA Civ 495

My vindication to all my former “doubting Thomas” clients

 

This article is part of a trilogy of articles – you may wish to read this in conjunction with “Dismissing Financial Claims to Finality” and “Vince and Wyatt – Electric Shock for the Unwary”

At the time of writing this article (August 2013) I will have been qualified for nigh on 18 years. So for almost 20 years I have been advising clients, rich and poor, old and young, to do what I refer to as “closing the doors”.

I have explained time and time again that a divorce ONLY ends your emotional and physical relationship; it does not end their financial relationship. I have vehemently expressed a strong view that in order to do the latter, they need to (wherever possible) close what I have referred to as “closing the lifetime door” and “closing the death door”.

Let me explain: when parties divorce and resolve their finances whether by agreement or by litigating; the distribution of the assets, even if evidenced in writing, signed by both parties does not prevent the other former spouse from coming back in later years to make a (further) financial claim (under the Matrimonial Causes Act 1973)>

To make matters worse, even after a former spouse passes away, the surviving ex-spouse can make a claim against the deceased spouse’s estate if reasonable financial provision has not been made for them. Can you imagine how that may feel; that at the time of dealing with the loss of a loved one (the deceased spouse) the executors, usually perhaps the grown up children, now have to deal with a financial claim too (under the Inheritance [Provision for Family and Dependants] Act 1975).

Let me give you an example; let us say poor Jack and Jill decide to divorce. They proceed to decree absolute, all fine and dandy so far. They decide that they do not need a Solicitor and so amicably share the assets in whatever proportions they see fit. Both are happy, but both are smart (or so they think) and they write it all down and sign the document in the usual “in full and final settlement” terms or similar words to make it cast iron.

The problem is that it is not cast iron. That negotiated settlement is not much use frankly in protecting either of them in the future.

As I mentioned, the Matrimonial Causes Act 1973 allows a spouse or FORMER spouse to make a financial remedy claim and the courts function cannot be usurped by an agreement reached between the parties (in simple terms).

So off they trot, happy that they have saved probably a couple of thousand pounds in not using a Solicitor. Bargain.

Jill then (using an actual case I had to deal with as an example) comes into my office very distressed with a pile of court papers just after her mother sadly passed away eight years after her divorce (which I did not do). The court papers were from her very naughty ex-husband who decided that they needed to resolve financial issues to finality and his Solicitor expressed the (right) view that this had not been achieved by their agreement, even though it was stated as being in full and final settlement.

At the time of her divorce, both were unemployed and “penniless”. Her legal advisor at the time felt that there was no need to “close the doors” dismissing financial claims against each other and so no financial consent order was prepared or sealed by the court.

Now poor Jill had bettered herself, got a good job and good prospects and indeed inherited a substantial sum of money from her late mothers’ estate. She was far from penniless now.

Had she prepared that financial consent order and “closed the doors” she would not have been in this predicament.

Going back to the title of this article, I talk about vindication. I have always advised my clients, to dismiss all claims each has against the other, whether they are wealthy or not, because their circumstances could change, hopefully for the better.

Often clients have looked at me with suspicion, even derision on rare occasions, that I suggest such a thing because it is a mechanism for me to extract more money from them. They fail to appreciate that the reason for the legal advice is to protect them. The vast majority have accepted my reasoning and honesty, the odd client has not much, to their detriment.

In the recent case of Vince v Wyatt ([2013] EWCA Civ 495 for all you boffins out there) the Court heard that Dale Vince and Kathleen Wyatt married in December1981. At the time both were receiving state benefits. They had a child in May 1983 and separated in February 1984.

In October 1992 Mr Vince and Ms Wyatt were divorced. At the time of the divorce neither party had any assets and both were receiving state benefits. Ms Wyatt had a relationship with another man with whom she had children. Mr Vince married his current wife in 2006 with whom he has a son.

It is unclear whether any financial orders were made at the time of the divorce in 1992. Given the time which has elapsed all the court papers apart from the divorce decree itself have been destroyed. The files of the solicitors involved at the time had also been destroyed long ago.

In 1996 Mr Vince founded Ecotricity, the world’s first green energy company which has since grown into a very successful business estimated by The Sunday Times Rich List to be worth £90m.

When the matter went to court, the Family Division of the High Court declined to strike out Ms Wyatt’s claim as an abuse of process and ordered that Mr Vince furnish Ms Wyatt with a fighting fund to bring the claim against him.

Yes, you read it right first time: Mr Vince had to pay Ms Wyatt money to fight her case against him. Ouch.

(Fortunately – depending how you look at it), in a unanimous decision, on appeal, the Court of Appeal upheld Mr Vince’s appeal against a judgment given in the lower court.

The Court of Appeal ordered that Ms Wyatt’s claim for a housing fund and capitalized lifetime maintenance should be struck out because at the time when Ms Wyatt should have brought her claim neither party had any money and both were in relationships with new partners. Mr Vince’s present wealth was generated years after the parties divorced as a result of the success of the Ecotricity business.

The outcome was a just and fair outcome. It was a good job Mr Vince had the money and the sense to appeal. Many others may not have. Phew.

The moral of the story to all those doubting Thomas’ who thought I was seeking to line my purse with their hard earned money. You believe me now don’t you?

To those who did not believe, it is well, erm hard cheese.

Ignore your Solicitor at your peril.

 

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.

Shak Inayat

Solicitor

0207 183 2898

 

Vince v Wyatt

Vince and Wyatt – Electric Shock for the Unwary

Vince v Wyatt [2013] EWCA Civ 495

 

This article is part of a trilogy of articles – you may wish to read this in conjunction with “Dismissing Financial Claims to Finality” and “Closing the Door on the Past”

In the recent case of Vince v Wyatt ([2013] EWCA Civ 495 for all you boffins out there) the Court heard that Dale Vince and Kathleen Wyatt married in December1981. At the time both were receiving state benefits. They had a child in May 1983 and separated in February 1984.

In October 1992 Mr Vince and Ms Wyatt were divorced. At the time of the divorce neither party had any assets and both were receiving state benefits. Ms Wyatt in due course had a relationship with another man with whom she had children. Mr Vince also at some point thereafter married his current wife in 2006 with whom he has a son.

It is unclear whether any financial orders were made at the time of the divorce in 1992. Given the time which had elapsed, all the court papers apart from the divorce decree itself have been destroyed. The files of the solicitors involved at the time had also been destroyed as they are only usually kept for six years.

So they divorced in 1992. In 1996 Mr Vince founded Ecotricity, the world’s first green energy company which has since grown into a very successful business estimated by The Sunday Times Rich List to be worth £90m now.

Ms Wyatt made a financial claim to settle financial matters once and for all in 2012/2013 because of the (lack of) (proof of) failure to dismiss financial claims at the time.

The VERY common error most people make (and it seems, some Solicitors too) is that the divorce will end a financial relationship. It does not. That needs to be “divorced” separately.

The law relating to this point is covered in the article “Dismissing Financial Claims to Finality” so I will not repeat it here. But in summary, only a court order, done by consent (so neither party needs to turn up to court) or a court order ordered by the Judge after litigation, can dismiss claims between two (former) spouses. Any other agreement between the two (former) spouses, even if signed, witnessed and concluded by the words “in full and final settlement” or words to that effect, in reality do not do that. So, either party can come back years later as this case demonstrates.

So Ms Wyatt did just that, she made a financial claim years later.

When the matter went to court, the Family Division of the High Court declined to strike out Ms Wyatt’s claim as an abuse of process and ordered that Mr Vince furnish Ms Wyatt with a fighting fund to bring the claim against him.

Yes, you read it right first time: Mr Vince had to pay Ms Wyatt money to fight her case against him. Ouch.

(Fortunately – depending how you look at it), in a unanimous decision, on appeal, the Court of Appeal upheld Mr Vince’s appeal against a judgment given in the lower court.)

The Court of Appeal ordered that Ms Wyatt’s claim for a housing fund and capitalised lifetime maintenance should be struck out because at the time when Ms Wyatt should have brought her claim, neither party had any money and both were in relationships with new partners. Mr Vince’s present wealth was generated years after the parties divorced as a result of the success of the Ecotricity business.

In my humble view, the outcome was a just and fair outcome. It was a good job Mr Vince had the money and the sense to appeal. Many others may not have been so lucky. Phew.

Mr Vince understandably (but incorrectly) expected that having separated from his ex-wife in 1984 when he was a penniless 22 year old, he should not be required to pay her a vast sum of money simply because years after she divorced him in 1992, he had built a successful business. Fortunately, the Court of Appeal agreed with him unanimously.

Giving the lead judgment for the Court of Appeal, Lord Justice Thorpe said:

“The facts of this case are extreme. Impecuniosity has been the experience of all of the wife’s adult life. Both the men with whom she has entered into family life were seemingly equally impecunious.

Her husband was the most improbable candidate for affluence. The wife no doubt can appeal to his sense of charity but in my judgment he is not to be compelled to boost the wife’s income by the exercise of the jurisdiction under the Matrimonial Clauses Act 1973. He is not her insurer against life’s eventualities.”

In a concurring judgment, Lord Justice Jackson said:

“In my view the court should not allow either party to a former marriage to be harassed by claims for financial relief which

(a) are issued many years after the divorce and

(b) have no real prospect of success.

It must be an abuse of the court’s process to bring such proceedings…The present case is a classic example of such abuse.”

The Court also held unanimously that Mr Vince should not have been ordered to fund his ex-wife’s legal costs of bringing the claim against him. Lord Justice Thorpe said that he would have allowed Mr Vince’s appeal against that aspect of the order even if he had not allowed his appeal against the entire claim being allowed to continue.

Agreeing that Mr Vince should not in any event have been ordered to pay Ms Wyatt’s costs, Lord Justice Jackson said:

“If the deputy judge’s order stands, the ultimate result will be that

(a) the wife recovers nothing,

(b) the husband pays all the costs of both sides and

(c) the husband has not an outcome which the court can contemplate with equanimity, however wealthy the husband may be.”

Whichever way we wish to dissect and interpret the language and implications of this ruling, the simple fact of the matter is that to fail to dismiss all claims, whether rich or poor, old or young, is a folly.

You may have divorced many years ago and be in a similar situation, in that you are in a new relationship or marriage. You may not have dismissed all financial claims as Mr Vince ought to have. You may therefore be potentially exposed to a claim by your ex-spouse.

How you manage that is likely to require the expert guidance of a qualified, specialist Family Solicitor.

Ignore this case at your peril or you may be in for a nasty shock.

 

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.

Shak Inayat

Solicitor

0207 183 2898

Cohabitees And Divorce – Some Differences

Cohabitees and Divorce – some differences

There is limited financial protection for cohabitees unlike married couples who are given different and greater protection upon the breakdown of their relationship. The “common law husband/wife” concept has not existed in England since 1753 unbeknown to most people.

Below is a very brief summary of the position as it affects couples who are not married to each other whether it is a heterosexual or same sex relationship.


Children

With respect to the children of the relationship, financial assistance can be sought through the Child Support Agency (as most people refer to it still). If this is the case, then you can simply apply to the CSA for maintenance for your children as you would if you were a married couple/same sex partnership.

With respect to residence (custody) and contact (access), generally the position is that the mother of the children will always have parental responsibility for the child/ren. The father (or same sex partner) of the children can acquire parental responsibility either by:-

a)      Agreement. That is by signing a parental responsibility agreement form.

b)      Order of the Court.

c)      Subsequently marrying the mother (or same sex partner) of the child.

Until both parties have parental responsibility the father (or same sex partner) is not treated as an equal in the upbringing of the child/ren and in that situation it is always best to seek legal advice.

Once parental responsibility has been obtained however, the Courts will be primarily concerned as to what is in the child/ren’s best interest; the Court will not necessarily be concerned whether or not the parties are married and not  favour one parent, for example the mother, over the other.

 

 

Owned Property

If the deeds of a property are in the name of one person then that person is known as the legal owner of that property, and therefore, has the power to deal with that property as he or she pleases.

However, if one party does not have a legal interest in that property then he or she can claim interest in the property known as a “beneficial interest”. That person may claim a beneficial interest if they have contributed somehow towards the acquisition of that asset, for example, by doing substantial re-decoration or improvements to a property, or paying towards the initial deposit of the purchase of the property etc.

It may also be the case that a party can claim a beneficial interest if, at the time of the purchase, there was an agreement or understanding that both parties would have a share in it even though one person’s name alone is on the deeds.

The person whose name is not on the deeds would have to, in some way, probably show that they relied on the understanding to their detriment e.g by giving up a job or another tenancy agreement. This area is very complicated and very difficult to explain in any greater detail in this article, so you should take fuller legal advice on this point if you think it applies to you.

If the property is in joint names then both parties are the legal owners of that property and then both have the joint right to deal with that property as they so see fit.

Either party may ask the Court for an Order that the property is sold. The Court will look at a number of factors including:-

a)      The intention of the parties when they purchased the property.

b)      The purpose for which the property is used.

The Court will, therefore, look to see why the property was bought; the normal purpose is to provide a home. Where the relationship has broken down, the purpose of the home no longer continues, and therefore, the Court may order the sale of the property.

This is a complicated area of law, so you should take fuller legal advice on this point if you think it applies to you.

Compare this with a divorcing couple who will be subject to entirely different rules (known as the section 25 factors) and note that a Trial Judge could award the property to say the wife, even though it may be in the sole name of the husband or vice versa.

 

Rented Property

If the property is rented, then the right to occupy that property depends on whose name is on the tenancy agreement. If the tenancy agreement is in one person’s name then that person has the sole right to occupy. In certain cases an application can be made under the Family Law Act 1996 for the tenancy agreement to be transferred into the other party’s name, for example, where there has been violence, threats of violence, or it would be better under all the circumstances that that should be the case.

If the tenancy agreement is in joint names, then the right to occupy that property is given to both parties. If one person vacates the property, then both parties will be liable for the rent (including the person who is not in occupation) until the tenancy agreement comes to an end.

 

Again, a divorcing couple (heterosexual or same sex) would be subject to entirely different rules (known as the section 25 factors) and the Trial Judge could award transfer the tenancy of the property to say the wife, even though the tenancy may have been in the sole name of the husband for a number of years or vice versa.

 

Assets (possessions)

With respect to assets e.g television, furniture etc, the general rule is whoever purchased the items, owns it. If the items were a gift from one party to the other then the item is owned by recipient (i.e the person for whom the gift was intended).

If the items were purchased jointly then the item belongs to both parties (usually 50% each) unless one person can show that they paid more towards it. If one person can establish that they paid more towards it then they will own a greater percentage of that asset.

However, in regards to a married heterosexual or same sex couple, the assets, at least initially, would be treated as acquired by both parties and as joint matrimonial assets.

 

The law in relation to cohabitees is very complicated. Please contact us for further advice before embarking on any particular course of action.

 

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.

Shak Inayat

Solicitor

0207 183 2898

Divorce Made Simple 10 – Apply For Decree Absolute As Respondent

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.

First consideration

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.

 

Timing

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.

 

Application

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.

Shak Inayat

Solicitor

0207 183 2898

Divorce Made Simple 9 – Applying For Decree Absolute

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.

 

First consideration

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.

 

Timing

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.

 

Application

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.

Shak Inayat

Solicitor

0207 183 2898