Conditional Order/Decree Nisi in Divorce

conditional order decree nisi

IN THIS ARTICLE

Obtaining a conditional order is a crucial stage of the divorce process in England and Wales. You will need a conditional order before you can apply for a final order to legally end your marriage.

In this guide, we explain what a conditional order is in divorce proceedings and the process you will need to follow to obtain one. This guidance equally applies to anyone looking to dissolve their civil partnership.

What is a conditional order in divorce?

Under the Divorce, Dissolution and Separation Act 2020 (DDSA), which came into force on 6 April 2022, either or both parties to a couple can apply to the court for an order which dissolves their marriage on the ground that “the marriage has broken down irretrievably”.

A conditional order is the first of two court orders that you must obtain before you are actually divorced. This is the legal document declaring that the court is satisfied under the DDSA that your marriage has irretrievably broken down and, because of this, a further application can be made to the court for a final order so as to officially end your marriage. Effectively, the court is saying that it does not see any reason why you cannot get divorced.

The DDSA represents the biggest reform of divorce law in England and Wales in 50 years, introducing the concept of “no fault” divorce for the first time. The DDSA also introduces the concept of no-fault dissolution for those looking to dissolve their civil partnership. You will be able to get divorced in England or Wales if you have been married for at least a year, your marriage is legally recognised in the UK and this has permanently broken down.

Is a conditional order the same as a decree nisi?

Besides the terminology itself, there is no legal difference between a conditional order and a decree nisi, where a decree nisi is simply the former name used for a conditional order under the previous divorce law regime prior to the introduction of the DDSA.

However, under previous divorce laws, getting divorced was often an acrimonious and drawn out process, not least because one spouse was typically required to assign some form of blame against the other, so as to satisfy the court that their marriage had irretrievably broken down. The only way of avoiding this unfortunate “blame game” was to wait until the parties had lived apart for 2 years before petitioning for divorce where, provided the respondent consented, the court would grant a divorce on the basis of this period of separation. If the respondent refused, it was still open to the petitioner to prove “irretrievable breakdown” on the basis of separation, but only having lived apart for 5 years.

As such, the decree nisi played an important role in the divorce process, as this decree would only be issued by the court once a judge was satisfied that any one of five facts to prove irretrievable breakdown had been established by the petitioning party, ie; adultery, unreasonable behaviour, desertion, 2 years’ separation with consent or 5 years without.

The removal of the requirement to prove certain “facts”, with a complete shift from a fault-based system to a far less contentious regime, is reflected in the change in legal jargon. Although the conditional order remains an important part of getting divorced under the new law, absent any need to attribute blame, this is more of a procedural rather than an evidential hurdle for the parties to clear. This is because, to be granted a conditional order, the applicant(s) need only have ticked a declaratory statement of irretrievable breakdown as part of their application, without any need for detailed allegations or evidence.

Who can make an application for a conditional order?

Under the DDSA, a person is no longer required to “petition” for divorce, where the petitioner and respondent are now referred to as either the sole or joint applicant(s). This is because the parties, where the decision to get divorced is mutual, are now permitted to apply on a joint basis, as opposed to one party being forced to petition against the other. Equally, even if the application is made by just one spouse, the sole applicant will not be required to attribute any blame against the respondent or show any period of separation.

You should make a sole application if either your ex does not agree you should get a divorce, or if you do not think that they will cooperate or respond to notifications from the court. If you apply jointly, you will both have to separately confirm that you wish to continue with the application at each stage of the process. However, if your ex stops responding, you will still be able to continue with the divorce as a sole applicant.

The provision for the parties to jointly apply for their divorce is designed to reduce any animosity and pave the way for a positive co-parenting relationship, where applicable, and to help facilitate any arrangements to divide the marital assets and money. However, any issues around children and finances, and whether or not agreement has been reached with your ex, should not affect your decision on whether to pursue a sole or joint application.

Importantly, even if a party applies for a divorce on a sole basis, and provides a declaratory statement in their name alone, this will still suffice to get a divorce under the DDSA regime.

How to apply for a conditional order in divorce

To apply for a conditional order in divorce, one or both parties must submit an online application to the court. There is a £593 fee to apply for a divorce, although you may be able to get help in paying this if you are on a low income or benefits. However, if you want to apply for assistance with paying the fee, both you and your ex must be eligible to qualify.

You will be asked to upload a digital photo of your marriage certificate as part of the online application, together with any change of name deed, if this has changed since you got married. If you have problems doing so, you can instead post any documents to the court, sending either the original or a certified copy. You can also submit your application by post, using Form D8, although your spouse will need to use the same application method.

If you apply for a divorce as a sole applicant, your ex will be required to respond to your application after you have submitted it. If you apply jointly with your ex, they will need to join and review the online application before this is submitted. Once they have reviewed the application and provided some of their own answers, the completed application will come back to you to review one final time before submitting to the court.

Having issued the application, you will both be required to wait a period of 20 weeks before you can apply to the court for a conditional order, even if you applied for a divorce on a joint basis. If you applied together with your ex but, at the 20-week point, they no longer wish to proceed, you can still request a conditional order. The application will simply proceed on a sole basis, although you will be required to send a copy of your application to them. If you are both happy to proceed on a joint basis, you will each need to separately confirm that you wish to continue with the divorce application at this interim stage.

To apply for a conditional order, one or both parties must submit an application using Form D84, which includes a statement in support of divorce — ticked either by the sole applicant or both applicants where applying together — effectively confirming that the marriage has broken down irretrievably. Provided the requirement for a statement by the applicant(s) that the marriage has permanently broken down has been satisfied, the court should grant an order, where will be no need for contested witness testimony or any evidence in rebuttal. Under the DDSA, the court dealing with the application “must” take this statement to be conclusive evidence that the marriage cannot be saved.

On what basis can a conditional order be contested?

There will be only very limited ways in which the grant of a divorce can be contested by your ex, for example, on procedural or jurisdictional grounds. In most cases, the court will accept a sole or joint statement of marriage breakdown at face value and go on to make a divorce order, where your ex cannot dispute the divorce simply because they do not agree.

If you apply for a divorce as a sole applicant, the court will send the application to your ex, together with an acknowledgement of service notification. They must respond to this notification within 14 days saying whether or not they intend to dispute the divorce. If they do decide to dispute this, they will need to fill in a form explaining why they disagree with the divorce and pay an additional fee of £245. However, your ex can only dispute a divorce if they have a valid legal reason to do so, for example, if you live abroad, where the courts in England and Wales might not have jurisdiction to deal with your application.

For undisputed applications, the court will send out a certificate with the time and date that your conditional order will be granted, although this may take several weeks. The order will be pronounced in open court with the judge reading a list of the names of those entitled to a divorce. This is a mere formality and so there is usually no need to attend.

What happens after a conditional order has been granted?

On the grant of a conditional order, you will be required to wait a further 6 weeks and 1 day before applying to the court for a final order. You will still be married at this stage. The total minimum 26-week wait time incorporated into the new divorce process is to provide the parties with time to reflect and reconsider, although this is not solely designed to facilitate a reconciliation. This cooling-off period can also be used constructively to sort out any financial matters, or to put in place arrangements over access and care of any children.

Even though any issues relating to finances will be dealt with separately by the court, as part of your divorce application you will be asked if you want to apply for either a financial order by consent, where you and your spouse agree on the division of marital assets and money, or a contested financial order, where you are unable to agree. You will need to complete another form and pay a separate fee to apply for a financial order, where you will be given a link to the relevant forms after you have submitted your divorce application. You may want to seek legal advice or ask a solicitor to draft a financial order for you.

It is worth noting that it normally takes at least 6 months to get a divorce fully finalised, where this will be the same for both joint and sole applications. However, removal under the DDSA of the requirement for one spouse to establish certain “facts” will still usually reduce the timescales involved in getting divorced than under the previous regime. The new no-fault system is also likely to reduce any animosity caused by unnecessary allegations. This can often help to facilitate arrangements around finances and children, such that all matters relating to the marriage can be resolved with as little upset as possible.

Importantly, it is only once a final order has been granted — previously referred to as the decree absolute — that you will be officially divorced and free to remarry.

Decree nisi

This information predates the introduction of conditional orders in April 2022.

The decree nisi was the legal document declaring that the court was satisfied that the marriage had irretrievably broken down and, because of this, divorce was permitted. The decree nisi had to be followed by the decree absolute to officially bring a marriage to an end. The couple would not actually be divorced until the decree absolute was issued, requiring a wait of a further 6 weeks and 1 day following the grant of the decree nisi before the decree absolute could be applied for.

Decree nisi & the divorce process pre-April 2022

Even though the decree nisi, by itself, did not finalise the divorce, it still played an essential role in the overall divorce process. This is because the decree nisi was only issued once the court was satisfied that there are grounds for divorce. Under the previous Matrimonial Causes Act 1973, to satisfy the court that the marriage had irretrievably broken down, the petitioning party had to establish one of the following five reasons, also known as ‘facts:

  • Adultery: this is where the respondent has had sexual intercourse with someone else of the opposite sex, although the petitioning party cannot cite adultery as a reason if the petitioner and respondent have lived together as a couple for more than 6 months after finding out.
  • Unreasonable behaviour: this is where the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with them. This could include, for example, physical or verbal abuse, alcohol or drug abuse, or not contributing to household expenses.
  • Desertion: this is where the respondent has deserted the petitioner for a continuous period of at least 2 years prior to the petitioner filing for divorce. The petitioner can still claim desertion if they’ve lived with the respondent for up to a total of 6 months in this period, but this excluded period won’t count towards the 2 years.
  • 2 years’ separation: this is where the parties have lived apart for at least 2 years prior to filing for divorce and the respondent consents to ending the marriage. It may be possible for the petitioner to show that they’ve been separated while still living in the same home as the respondent, provided they’re no longer a couple, for example, they eat and sleep apart.
  • 5 years’ separation: this is where the parties have lived apart for at least 5 years prior to filing for divorce, even if the respondent doesn’t consent to ending the marriage.

Decree nisi & the new divorce laws

The DDSA represents the biggest reform of divorce law in England and Wales in almost 50 years, introducing the concept of ‘no fault’ divorce for the first time. The DDSA also introduces the concept of no-fault dissolution for those looking to dissolve their civil partnership.

The removal of the requirement to prove certain ‘facts’, with a complete shift from a fault-based system to a far less contentious regime, is also reflected in a change in legal jargon. The court order declaring that there’s no reason why the parties cannot get divorced is still be necessary (formerly the decree nisi), as is the order finalising divorce (the decree absolute), but these are instead known as a conditional order and a final order respectively.

Under the DDSA, the parties are also no longer required to petition for divorce, where the petitioner and respondent become either the sole or joint applicants. This is because both parties are permitted to apply for a divorce order on a joint basis where the decision is mutual. This is opposed to one party being forced to petition against the other. Equally, even if the application is made by just one spouse, the sole applicant is not required to attribute blame or demonstrate a prolonged period of separation of at least 2 years.

How to apply for a decree nisi or conditional order

To apply for a decree nisi (or conditional order), you’ll need to complete From D84, also known as the ‘application for a decree nisi’ form (or ‘application for a conditional order’). You can request a decree nisi (or conditional order) either online or by post.

How long does a decree nisi or conditional order take?

Under the DDSA, even where an application is made on a joint basis, you need to wait a minimum of 20 weeks before applying for a conditional order. You then need to wait the existing 6 weeks and 1 day after the conditional order has been issued before you can apply for a final order. This mandatory 26-week wait time is designed to give the parties a period within which to reconsider.

If you apply for a divorce on a joint basis, but your ex no longer wishes to proceed, you can still request a conditional order, where the application will then proceed on a sole basis. However, you’ll need to send your ex a copy of the conditional order application.

Conditional order FAQs

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Legal disclaimer

The matters contained in this article are intended to be for general information purposes only. This article does not constitute tax, financial or legal advice, nor is it a complete or authoritative statement of the rules and should not be treated as such.

Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission.

Before acting on any of the information contained herein, expert tax, financial, legal or other advice should be sought.

Author

Conditional Order/Decree Nisi in Divorce 1

Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.

Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing Agency for the Professional Services Sector.

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