Getting divorced can be a stressful time for separated spouses, not least because the legal process for filing for divorce can often be acrimonious, typically requiring one party to attribute some form of blame against the other to establish grounds for divorce.
However, with the Divorce, Dissolution and Separation Act (DDSA) 2020 is coming into force on 6 April 2022, the concept of ‘no fault divorce’ has been introduced into the UK for the first time. The DDSA will represent the biggest reform of divorce laws in England and Wales for several decades. It’s therefore hoped that the historically challenging legal process of bringing a marriage to an end, and obtaining a decree absolute, will be far more streamlined.
The following guide for divorcing couples looks at the rules relating to divorce and decree absolutes in the context of this long-awaited legislation. In addition to divorce, the DDSA also makes similar provision for civil partners looking to dissolve their civil partnership.
What is a decree absolute?
A decree absolute is the legal document that will bring a marriage to an end. This is the court order that follows the decree nisi, where each type of decree comprises an equally crucial part of the overall divorce process. Both decrees must be made by the court for a divorce to be official, although it’s only once the decree absolute has been issued that you’re free to remarry.
What part does the decree absolute play in the divorce process?
The decree absolute is the document that finalises the divorce, whilst the decree nisi is the document declaring that the court doesn’t see any reason why you and your spouse cannot end your marriage. You can apply for a decree nisi if your spouse doesn’t defend your divorce petition. If your spouse contests the divorce, you can still apply for a decree nisi, although a judge will need to decide at a court hearing whether or not to grant your petition.
As the law currently stands, under the Matrimonial Causes Act 1973, you’d need to prove that your marriage has irretrievably broken down before being granted a decree nisi. This requires proof of one of three prescribed fault-based facts, including adultery, unreasonable behaviour or desertion. Alternatively, you’d need proof of at least 2 years’ separation, provided you and your spouse both agree to a divorce, otherwise you’d need proof of at least 5 years’ separation.
It’s only having been granted a decree nisi, and waited 6 weeks and one day, that you can then apply to the court for a decree absolute.
Decree absolutes & new divorce laws from April 2022
The decree absolute will remain an essential part of the overall divorce process, but described differently. Under the DDSA, the decree absolute will be referred to as a ‘final order’, and the decree nisi as a ‘conditional order’. The parties will also no longer ‘petition’ for divorce, but rather the applicant, or applicants (if applying jointly), will ‘apply’ for a ‘divorce order’.
These changes in legal jargon are designed to reflect the change of emphasis within the new legislative provisions, with a removal of the requirement to prove certain facts, either by attributing blame or demonstrating a prolonged period of separation. The DDSA is therefore set to revolutionise the way in which spouses can formally end their marriage, without the need to make unnecessary allegations or wait for at least 2 years. Where the decision to divorce is mutual, the parties will also be able to make a joint application to issue proceedings, rather than one spouse being forced to petition against the other.
Under the DDSA, an application for a divorce order must be accompanied by a statement that the marriage has broken down irretrievably, but without having to cite any one of the five facts or produce evidence in support of the breakdown of the marriage. Provided the paperwork is in order, and a signed supporting statement has been submitted to the court by either party, or the couple jointly, the divorce will usually be granted. The statement will be treated as conclusive evidence that any differences are irreconcilable, and the court must go on to make an order. Under the DDSA, it will no longer be possible to contest a divorce, except on very limited grounds, for example, jurisdictional or procedural compliance grounds.
How do I apply for a decree absolute?
To apply for a decree absolute, you’ll need to fill in Form D36, also known as the ‘notice of application for decree nisi to be made absolute’ form. This is in addition to Form D8 that is filed when issuing divorce proceedings, and Form D84 when requesting a decree nisi. You can petition for divorce, and request a decree nisi and decree absolute, either online or by post.
However, on 6 April 2022, the DDSA will come into force, in response to which the government will be revising the paper forms and launching a new online service. This means that the old service will be unavailable from 31 March 2022, up to and including 5 April 2022, while the government makes preparations to accommodate these changes. If you’re looking to file for divorce prior to 6 April 2022, all digital petitions must be submitted online by no later than 4pm on the 31st March 2022, and all paper petitions received by the court by the same date. Alternatively, unless urgent, you can wait until the new digital service is launched.
Detailed guidance on the new procedural steps under the revised law have been issued by the Ministry of Justice and can be found online, including how to request a final order (formerly the decree absolute) once a conditional order (formerly the decree nisi) has been made. You can make a request for a final order using ‘notice of application for a conditional order to be made final’ (the revised Form D36). This can also be found online, but should only be used in divorce proceedings issued on or after 6 April 2022.
How long does a decree absolute take?
Crucially, the DDSA will introduce a new minimum overall timeframe to get divorced of 6 months. This 26 week wait time will be made up of a mandatory period of 20 weeks between issuing proceedings and when the applicant(s) can apply for a conditional order, and the existing minimum 6 week period between the conditional order (decree nisi) and when the order can be made final (decree absolute). Provided one or both parties still want to proceed after the initial 20 week period, an application can be made for a final order. At this stage, the court will check that the time limits have been met and go on to issue a divorce order.
The mandatory 6 month timeframe prescribed under the DDSA is intended to provide the parties with a meaningful period of reflection to consider the possibility of reconciliation. However, the primary focus under the new legislation is on conflict avoidance, helping separated couples to minimise the damaging effects of divorce proceedings, especially where children are involved. Where divorce is inevitable, it’s important for parents to remain on good terms, so that they can co-operate with each other over care and access arrangements.
How much does a decree absolute cost?
It currently cost £593 to apply for a divorce online or by post, although you might be eligible for a fee remission or reduced fee if you’ve little or no savings, in receipt of certain benefits or are on a low income. To make an application for help with fees, you’ll need to apply online. Where you intend to apply for financial assistance to petition for divorce prior to 31 March 2022, you’ll need to factor into your timeline an extra 14 days’ ahead of this date.
What happens if you don’t apply for a decree absolute?
Under the existing law, if you don’t apply for a decree absolute, your spouse can apply instead. However, they’d need to wait an extra 3 months to apply, in addition to the standard 6 weeks and one day. Similarly, under the DDSA, where either you or your spouse has made a sole application, the other party can apply for a final order after 3 months.
If you and your spouse apply jointly under the DDSA, you should both give notice to the court to make a conditional order final. However, it’s still possible for just one of you to proceed on a sole basis, although notice must first be given to the other party of their intention to give notice to the court that they wish the conditional order to be made final.
What if the application for a decree absolute is out of time?
Under the existing law, if you take more than 12 months to apply for a decree absolute, you’ll usually have to explain this delay to the court. This doesn’t mean that the court will necessarily refuse to grant a decree absolute, although you’ll need to provide a good reason for failing to apply sooner. It’s also likely that this approach will continue under the new law.
How do I get a copy of the decree absolute?
If you’ve applied for a divorce online, you should be able to access your decree absolute within 24 hours (Monday to Friday), or 10 days if you applied by post. If you have a solicitor acting on your behalf, the decree absolute will be sent to them, and you’ll need to ask them for a copy. Although it’s yet to be seen how quickly a conditional order will be made available under the new law, this is likely to reflect the existing timescales.
Is it worth waiting before applying for a divorce?
Proceedings issued by the court on or before the 5 April 2022 will continue to progress under existing law, and will not be affected by the reforms introduced under the DDSA. However, it’s worth noting that by waiting to issue divorce proceedings, either online or by post, you can take advantage of the new simpler and streamlined legislative provisions.
Under the new law:
- you can make either a sole or joint application: where both parties agree to getting divorced, the DDSA allows couple to apply together, in this way reducing complexity and animosity
- the basis upon which a decision to divorce can be challenged is limited: respondents to a sole application are not able to dispute whether the marriage has permanently broken down
- there’s no requirement to provide evidence of either conduct or separation: you and your ex will simply need to file a single or joint statement of irretrievable breakdown of the marriage, without having to provide proof of things like adultery or unreasonable behaviour.
Expert legal advice should always be sought before issuing divorce proceedings, especially where there are financial matters and issues relating to custody and care of any children. However, when it comes to getting divorced, separating couples can expect far less stress once the new law comes into force.
Decree absolute 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 legal advice, nor is it a complete or authoritative statement of the law, 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 legal advice should be sought.
Author
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.
