A Decree Nisi is a provisional decree of divorce pronounced when the court is satisfied that a person has met the legal and procedural requirements to obtain a divorce. In summary, it is a document that shows the court is satisfied that you can divorce.
The Decree Absolute is a court issued certificate that concludes the divorce process. It is the legal document that confirms that the marriage has officially ended.
One party (called the Petitioner) files at court a divorce petition, the original marriage certificate and a fee, currently £550. No divorce petition may be filed within the first year of marriage.
The petition must be based upon one of the following five “facts” – adultery, unreasonable behaviour of the other party, 2 years desertion by the other party, 2 years separation with the consent of the other party, or 5 years separation.
The petition is served on the other party (called the Respondent) and any Co-Respondent (in adultery cases), usually by the court.
The Respondent returns the acknowledgement of service to the court within 7 days of receiving the petition indicating whether or not he or she intends to defend the divorce.
If the Respondent indicates an intention to defend, which is unusual and the Respondent wishes to pursue that intention, he or she must file a document at court called an Answer within 28 days of receiving the petition and after various other procedural steps there will be a court hearing at which a judge will decide whether or not to pronounce the Decree Nisi (the provisional decree of divorce).
If the Respondent does not intend to defend the divorce, which is usually the case, the Petitioner makes a statement in support of his / her petition and applies to the court for the Decree Nisi.
The judge will consider the documents which have been filed and if satisfied that the ground for divorce is substantiated and that certain other prescribed requirements are met, will certify that the Petitioner is entitled to a Decree and will provide a notice of Decree Nisi date. This notice will fix a date for the pronouncement of the Decree Nisi and whether a costs order will be made.
The Decree Nisi will be pronounced on the date fixed.
Six weeks and one day later, the Petitioner may apply for the Decree Absolute (the final decree of divorce).
If the Petitioner does not apply for the Decree Absolute to be made, then the Respondent may do so three months later. This will involve a brief hearing before a judge.
The Decree Nisi is made absolute to finally dissolve the marriage. There is no court hearing.
If a divorce is undefended it will typically take a minimum of 4 to 5 months. If a divorce is defended it will typically take anywhere between 6 to 12 months. It may be advisable to delay applying for the Decree Absolute until financial matters arising from the divorce are resolved, if ending the marriage will prejudice that immediate financial provision.
An annulment is a different way of ending a marriage. You do not have to wait for a year before you can apply for annulment. This is unlike a divorce. You will have to show that the marriage was never legally valid – “void”, or was legally valid, but meets one of the reasons to make it – “voidable”. A Nullity Petition needs to be presented to the court within a reasonable period of time from the date of the marriage. Whether the marriage is void or voidable, if a petition for Nullity is issued, the parties can apply to the court for financial provision just as they can with a divorce.
It is a ground for divorce used typically in the jurisdiction of the United States. Here in England the only ground for a divorce is the irretrievable breakdown of the marriage. Irreconcilable differences or irretrievable breakdown both refer to the inability of two people to resolve their differences in order to remain married. The irretrievable breakdown of the marriage has to be evidenced by one of five facts predefined in law – adultery, unreasonable behaviour of the other party, 2 years desertion by the other party, 2 years separation in consent of the other party, 5 years separation.
If you and your spouse are able to agree the arrangements concerning the children then there is no need for the court to get involved.
If you are unable to agree arrangements, before an application can be made to the court, the parties must engage in a MIAM (Mediation and information assessment meeting). A MIAM can only be carried out by an accredited family mediator. A MIAM will be used to provide parties with information about mediation and the suitability of mediation to try and resolve the dispute. The mediator will also assess the existence or risk of domestic abuse, or harm to your child, who would be the subject of any application. There are some exemptions to parties having to attend a MIAM.
If mediation is deemed suitable then meetings will be arranged. Once an agreement is reached a memorandum of understanding can be prepared by the mediator. So everyone understands what has been agreed. The agreement is not legally binding in the sense of being enforceable by a court and you may wish to decide to create a consent order to be approved by the court.
If an agreement cannot be reached or if mediation is determined to not be suitable then the child arrangement programme will be invoked by the court once an application is made. This procedure applies where a dispute arises between separated parents and/or families about the arrangements concerning children. The programme is designed to facilitate and encourage the resolution of dispute outside the court system and, where not possible, the resolution of the dispute through the court system.
The basic structure of the programme is:
- Application to court
- Safeguarding checks by CAFCASS
- First hearing dispute resolution hearing (FHDRA)
- Case management directions if agreement not reached, including statements and section 7 reports where appropriate.
- Fact finding hearing, if required
- Dispute resolution appointment (DRA)
- Further case management directions if agreement not reached.
- Final hearing
Yes. You can apply for Judicial Separation. This is a formal separation sanctioned by the court. You do not have to wait a year from the date of marriage before petitioning for judicial separation. The marriage is not terminated. It enables the court to make orders about the division of money and property, however, as technically you are still married, the court cannot make pension sharing orders. This also means you are not free to remarry until a divorce is obtained. Judicial separation is not usually suitable for most people, however, couples in the following situation may wish to rely upon judicial separation proceedings;
- If you have religious or moral objections to divorce
- If you have separated and have not been married for more than year and you wish to resolve financial issues
- If there is a financial benefit in not terminating the marriage through divorce
If the Respondent indicates an intention to defend a divorce, which is unusual, and the Respondent wishes to pursue that intention, he or she must file a document at court called an Answer within 28 days of receiving the petition and after various other procedural steps there will be a court hearing at which a judge will decide whether or not to pronounce the Decree Nisi (the provisional decree of divorce).
