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If one party wants the divorce to be finalised but the other does not, and the parties’ finances have not been resolved, may the decree absolute be delayed? The divorce process in England is conducted in three stages: 1. When a divorced person wishes to remarry, a sealed copy of the decree absolute must be produced as evidence the party is legally free to do so. It remains lodged with the court and in return, on decree absolute, the certificate bearing the court seal is the effective “swap.” The parties are legally divorced only when there has been a grant of decree absolute.Decree absolute and the law In the case of Miller Smith v Miller Smith (No 2) (2009 EWHC3623), a case on which I have posted before, my firm represented the husband.The Petitioner husband obtained his decree nisi of divorce, and the wife applied for the decree absolute to be postponed. The facts of the case are set out in the law report and I do not intend to comment on them. In paragraph 17 of his judgment Mr Justice Baker set out the law, having heard submissions from James Turner QC for the husband and John Wilson for the wife.Similarly, a religious divorce may be required to be in place before the parties are finally divorced. Lawyers do argue then about the circumstances in which decree absolute should be delayed.Of course, it is always wise to consider your own position with your solicitor, before agreeing to decree absolute.I have been involved in one case where in such a case, exceptionally, the mandatory period was shortened.
Or if there is a new baby on the way, and an urgent need to remarry.It is possible to be fully divorced without a financial settlement being resolved.At decree nisi stage the parties are almost, but not quite, divorced.Sometimes the parties agree at the outset that neither of them will apply for decree absolute until all the issues between them are resolved.In fact there are occasions when, legally, it is unwise to apply for decree absolute.After considering the statutory powers and following legal argument from both sides, His Lordship also found that there is an “inherent jurisdiction” of the High Court to delay making a decree absolute in appropriate cases.The case of England v England (1980) 10 Family Law 86 was a Court of Appeal decision where the court delayed decree absolute until a maintenance order had been made in favour of the children.The parties are still able to change their minds about getting divorced.That is why it is called : the Latin term for “unless.” There is a six week and one day minimum mandatory period between grant of decree nisi and decree absolute, so that if the couple do want to change their minds, they will remain married. I have one client who has twice obtained decree nisi from her husband, only to backtrack from the point at which the divorce was to be finalised.So it is a worthwhile part of the procedure and serves its purpose.In most cases, however, too much water has passed under the bridge and the obtaining of decree absolute is public recognition that the parties, who are already divorced in body and mind, are now legally divorced.