When to apply for decree absolute: timing is everything

Many people are understandably eager to conclude the divorce and move on with their lives. This can lead to the temptation to apply for the decree absolute as soon as they are eligible: six weeks and one day from the date of the decree nisi. However, they should think twice before rushing to dissolve the marriage too soon, as this can have serious consequences.

What is a decree absolute?

A decree absolute is the final decree of divorce which legally ends the marriage.
This means that once the decree absolute has been pronounced, the parties are no longer spouses, and this can have important implications which should be borne in mind if the financial separation has not been formalised.

What happens after the decree absolute has been pronounced?

• Matrimonial homes rights – If the family home is in the sole name of one spouse, the other spouse has no legal interest in the property. They will, however, have a right of occupation and this can be protected by filing a matrimonial homes rights notice with the Land Registry. This is only available to a spouse and therefore when the Land Registry receives a copy of the decree absolute, the restriction on the title of the property will be removed. That means that the legal owner of the property can sell the property without prior notice being provided to their ex-spouse.
• Pensions – Where pensions need to be divided, a Pension Sharing Order is required. The Pension Sharing Order only comes into effect on the later of the granting of the decree absolute or 28 days from the date of the order. Therefore, if the decree absolute has been pronounced and a spouse passes away within 28 days of the date the Financial Order was sealed, it is possible that the Pension Sharing Order will fail as the pension fund will have terminated on the member’s death before the Pension Sharing Order could come into effect. For that reason, it is good practice to wait 28 days from the date of the sealed Financial Order before applying for the decree absolute.
• Trust funds or other complex assets – Some trust funds or other complex assets often cannot be transferred except to a spouse.
• Death – A Financial Order determining the financial settlement arising out of the divorce will only become enforceable upon the decree absolute. If one party dies before the financial settlement has been agreed and the Financial Order has come into effect, the deceased’s estate will be distributed according to their will or the intestacy rules. If the surviving spouse’s financial position is worse off than they would have been with a matrimonial financial settlement, then they can make a claim under the Inheritance (Provision for Family and Dependants) Act 1975. Contrastingly, if the decree absolute has already been granted then the surviving party will be an ex-spouse and they do not have the same right to make a claim against assets under the Inheritance (Provision for Family and Dependants) Act 1975 and therefore could find themselves in a considerably worse position than had they deferred the decree absolute.

For more information about when you should apply for your decree absolute or legal advice about your divorce, our family law solicitors can help.