Rainscourt Family Law Solicitors

Delaying the Decree Absolute application

It has been said that “Divorce is a game played by lawyers”.  Whilst I am reluctant to refer to something as serious as divorce as a game, it is a helpful analogy.  If divorce is a game,  the instruction sheet for that game now has two versions, one for the DIY self represented person, and one for the lawyers.

The DIY instruction sheet would read:

1. Player A takes petition, issues it;

2. Player B received petition, acknowledges it;

3. Player A applies for decree nisi;

4. Player A applies for decree absolute 6 weeks later.

Direct.gov states “The decree absolute is the legal document that ends your marriage.  You need to wait at least 6 weeks after the date of the decree nisi before you can apply for a decree absolute. The delay gives you a chance to discuss finances and other issues with your husband or wife before the marriage comes to an end.”

Now this is correct, as far as it goes.

This is another potential version of the game:

1. Player A wants to issue petition.  Resolution lawyer advises that this needs to be considered in draft by Player B prior to issue;

2. Player A then issues the petition.  Player B does not acknowledge it, so a process server has to serve the petition on Player B;

3. Player A then applies for Decree Nisi;

4. Player B then writes to Player A and explains that she does not want him to apply for Decree Absolute, because she will lose out on spousal pension rights and health benefits if the divorce is finalised and Player A were to die prior to a financial settlement being approved by the court.

5. Player A says that he will undertake to nominate Player B to receive pension benefits in the event of his death prior to financial settlement, to match those that she would have received had she still been his wife, and to put in place health cover to match that which is in place under a spousal policy. Another option at this stage may be to offer to put in place appropriate life insurance.

6. Player B says that this is not sufficient and proceeds to court to prevent or stay application for Decree Absolute;

7. The court has jurisdiction to delay Decree Absolute, but will only use that power if a respondent to a petition (Player B) can show that she would suffer a financial or other disadvantage if the petitioner (Player A) dies after decree absolute for which she could not receive compensation.

8. Player A is then entitled to apply for Decree Absolute, as the undertakings he has offered are sufficient (according to the court in the case of Miller Smith) .

9. Player B pays Player A’s legal costs.

If these issues can be dealt with at the outset of the case, the “game” can then be played from the same set of instruction, thus limiting legal costs. Issues to consider and agree on will include the division of the costs of the divorce, and whether to delay the Decree Absolute application.

 

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