The timing of a decree nisi application for the order which states that the Court does not see any reason why a couple cannot divorce can be extremely important. A divorcing couple may be keen to move on with their lives, particularly if they want to re-marry, so there may be a temptation to make an application at the earliest opportunity but this may not always be the best option for one of the divorcing persons.
A financial order can still be made after the final decree has been granted and there is no limitation period on bringing a financial claim after a divorce. However, there are adverse consequences of bringing the marriage to an end if there are outstanding financial matters.
Timing of a decree nisi application
The potential issues of divorcing with outstanding financial aspects can include:
A spouse who has no legal interest in the matrimonial home (it is not in their name or held jointly with their spouse) can protect their position by registering a Matrimonial Homes Right Notice with the Land Registry. This prevents a spouse from dealing with the property, e.g. selling it, without notice being given to the other spouse.
However, a person is only entitled to home rights whilst they are married to the legal owner. This protection is lost immediately upon the pronouncement of the decree absolute and the Land Registry will remove the restriction on the register when presented with the decree absolute. It is good practice to delay the application for decree absolute to preserve home rights until a financial settlement has been reached, particularly if there are concerns over the disposition of the property.
Death of a divorcing spouse
If one spouse dies then the question of whether they were legally married is hugely important, as it will affect how the deceased’s estate is distributed. If a financial order has been made then that order will not become enforceable until the decree absolute has been granted. If the decree absolute has not been granted and a spouse passes away before the final divorce decree then the marriage will end on their death and the financial order will never become enforceable. A decree absolute cannot be granted when a spouse is deceased. A person cannot bring a financial claim under the Matrimonial Causes Act 1973 against a deceased spouse.
In the circumstances of a death before the decree absolute, the deceased spouse’s estate will be distributed according to either their Will, if they had one, or the rules of intestacy. A surviving spouse may end up doing better than the financial settlement, particularly if there are jointly owned assets if the deceased spouse did not have a valid Will. If, however, the deceased spouse did make a Will which disinherited or made inadequate provision for the surviving spouse then they could find themselves in difficult financial circumstances and yet without the benefit of making a financial claim on divorce. The surviving spouse could bring a claim against the deceased spouse’s estate under the Inheritance (Provision for Family and Dependants) Act 1975 but this is not ideal and could be challenged by other beneficiaries.
Pensions can be particularly tricky if something unexpected happens to one party. A 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 pension sharing order. If the decree absolute is granted and a spouse passes away within 28 days of the order then there is a chance that the pension sharing order will fail. This is because the pension fund will have terminated on the member’s death before the pension sharing order came into effect.
In addition, as the marriage has been formally ended by the decree absolute, the surviving ex-spouse would not be entitled to any spousal benefits under the pension, for example, a widow/widower’s pension. They would be left with no provision whatsoever. Whilst there may be a small window of risk, this scenario does occur and inevitably the surviving spouse is very unhappy at the outcome. Accordingly, it is probably good practice in cases where there is a pension sharing order, to wait at least 28 days from the date of the order before making the application for the decree absolute. There can then be no chance of being left without both the pension share and spousal benefits under the pension itself.
The application for the decree nisi to be made absolute may appear to be one of the simpler applications to make within the context of matrimonial proceedings generally. However, the consequences of making this particular application are considerable, so it is important to think about the timing of a decree nisi application carefully, regardless of the level of complexity of the case.
How Nelsons Can Help
The timing of a decree nisi application is important but everyone’s circumstances are different. If you need any divorce advice, please contact Layla or another member of our team in Derby, Leicester or Nottingham on 0800 024 1976 or via our online form.
The team will be happy to discuss your circumstances in more detail and provide you with more information about the services that we can provide.