Final Order/Decree Absolute in Divorce

final order decree absolute

IN THIS ARTICLE

A final order is the last stage of the divorce process in England and Wales.

In this guide, we explain what a final order is and the steps you will need to follow to obtain one to legally bring your marriage to an end. This guidance equally applies to anyone looking to dissolve their civil partnership.

What is a final order in divorce?

A final order is the second of two orders that you must obtain before you are officially divorced. It follows the conditional order in the divorce process.

Under the Divorce, Dissolution and Separation Act 2020 (DDSA), either or both parties to a marriage can apply to the court for an order on the basis that the marriage cannot be saved. In legal terms, the court will need to be satisfied that the couple’s marriage has “broken down irretrievably”.

The final order is a declaration from the court under the provisions of the DDSA that your marriage has irretrievably broken down and, by law, the marriage has come to an end. The first or interim order, known as the conditional order, is the legal document declaring that the court is satisfied under the DDSA that your marriage has irretrievably broken down and, as such, sees no reason why you cannot get divorced. It is only on the grant of the conditional order that you, or you and your former partner, can apply for a final order.

The DDSA introduced the concept of no-fault divorce in England and Wales for the first time, together with no-fault dissolution for those looking to dissolve their civil partnership. You will be permitted to apply for a divorce in England or Wales provided you have been married for no less than one year and your relationship has permanently broken down.

Is a final order the same as a decree absolute?

There is no practical or legal difference between a final order and a decree absolute, where a decree absolute is merely the former terminology used for a final order under previous divorce law, prior to the introduction of the DDSA new no-fault regime.

Under the new law, there is no longer any need for the petitioning party to attribute any blame so as to establish that the marriage has broken down irretrievably; the legal basis for divorce. Under the old law, the court would need to be satisfied that one of five facts had been established, including adultery, unreasonable behaviour and desertion.

Even though the two remaining “facts” were based on periods of separation, so did not require the petitioner to assign any blame, they would still need to satisfy the court that they and their former partner had lived apart for either 2 or 5 years. For a divorce on the basis of a 2-year separation, both parties would also need to consent to the divorce.

By removing the requirement to prove certain “facts”, with a shift from a fault-based system to a non-contentious regime, divorce proceedings are now far less acrimonious, where the legal jargon currently used is designed to reflect this more administrative approach.

Even though the conditional and final orders required to get a divorce remain a crucial part of the overall process, without the need for one party to make unnecessary allegations against the other, these orders represent a procedural rather than an evidential hurdle. This is because, to be granted either order, the applicant(s) need only have ticked a declaratory statement of irretrievable breakdown as part of their divorce application. As such, they will no longer be required to prove any “facts” or file any evidence in support.

Who can make an application for a final order?

Under the DDSA, there is no longer any requirement to “petition” for divorce, where the petitioner and respondent are now described as either the sole or joint applicant(s) or, where issued by just one party, the sole applicant and respondent. If both parties agree to getting divorced, they can agree to apply for their divorce together, on a joint basis.

Importantly, even if you decide to apply for a divorce as a sole applicant, you will not be required to prove irretrievable breakdown. The application itself includes a tick box for the following declaratory statement: “I confirm that my marriage or civil partnership has broken down irretrievably”, where the court “must” treat this statement to be conclusive evidence that the marriage cannot be saved, without requiring any evidence in support.

If your former spouse does not agree to the divorce, or they are unlikely to cooperate or respond to court notifications, you should apply on your own. If you apply together, you will both need to confirm that you wish to continue with the application at each stage of the process, although you can continue as a sole applicant if your ex stops responding.

The introduction of joint divorce applications under the DDSA is designed to minimise conflict between the parties, creating a more positive foundation for any future co-parenting arrangement and/or to help the parties reach an agreement around the matrimonial finances. However, whether you apply for a divorce on a sole or joint basis will not impact any financial or child arrangements order. These will both be dealt with separately to the divorce proceedings. It is also worth noting that a declaratory statement of irretrievable breakdown of marriage in your name alone is still sufficient to get divorced.

What is the procedure to apply for a divorce?

To apply for a divorce, one or both parties must submit an online application to the court and pay a fee of £593. If you and your partner are both on a low income or in receipt of certain benefits you may be able to get some help paying this fee.

As part of the divorce application, you will be asked to upload your marriage certificate and any deed poll if you have changed your name(s) since getting married. It is also possible to apply by post, using Form D8, and/or to send your documentation by post, although if you are applying with your former partner, you will both need to use the same method.

If you apply jointly online, one of you will initiate the application and the other will be asked to join and review this. If the application is issued by one party alone, the application, together with an acknowledgement of service notification, will be sent to the other for comment. They will then have a period of 14 days to respond.

What is the procedure to apply for a conditional order?

Provided the divorce is not in dispute, there will follow a 20-week cooling off period to provide the parties with time to reflect and reconsider, even if the application was made on a joint basis. This mandatory wait time is designed to help facilitate a reconciliation, where this is at all possible. However, it can also be used by the parties to resolve any outstanding financial matters or to agree any arrangements over custody and care of their children.

After 20 weeks, the sole or joint applicant(s) can apply for a conditional order, previously referred to as the decree nisi. If you initially applied for a divorce together with your former partner, but they have since changed their mind about going ahead, or have stopped responding, you can still proceed to apply for an interim order as a sole applicant. An application for a conditional order can be made online or by post, using Form D84. As with the initial divorce application, this includes a declaratory statement tickbox, referred to as a statement in support of divorce, to confirm the matters set out in the primary application.

Provided the judge is satisfied with the paperwork submitted, you will be sent a certificate setting out the time and date that your conditional order will be granted, although this can often take several weeks. However, there will be no need for you to attend this hearing.

What is the procedure to apply for a final order?

Having been granted a conditional order, you will be required to wait a further 6 weeks and 1 day before applying for an order to make the conditional order final. If you applied for a divorce online, you will be given instructions on how to apply for a final order. If you applied by post, you will need to use Form D36. However, if you made a joint application for the conditional order, but wish to make a sole application at the final order stage, this is again possible, but you should complete form D36A instead.

If your spouse started the divorce, but they have not applied for a final order, you can apply after 3 months, 6 weeks and 1 day from when the conditional order was granted.

Importantly, if you apply for a final order more than 12 months after the conditional order was made, you will need to explain the reason for your delay to the court. This could be, for example, because a financial settlement has not yet been reached.

On what basis can a final order be contested?

There are only limited ways in which a party can contest a divorce application, for example, on procedural or jurisdictional grounds. In most cases, the court will accept a declaratory statement of marriage breakdown on either a sole or joint basis, where simply not wanting to get divorced will not provide a basis on which to dispute an application.

For any party wanting to contest a divorce application, they will need a legal reason to do so, such as the fact that the court does not have the power to rule on the matter. This could be where, for example, a sole applicant is not habitually resident in England and Wales, nor UK domiciled, where the court would not be permitted to deal with their application.

If one party wishes to contest the divorce, they will need to fill in a form explaining why and pay a fee of £245. This will also usually require a court hearing, where legal advice should always be sought if either you are contemplating contesting a divorce or you are faced with the prospect of your former partner seeking to contest your divorce application.

How long does it take to obtain a final order?

In total, it normally takes a minimum of 6 months to get a divorce finalised. This is from the point of issuing a divorce application to the grant of a final order, where this will apply equally to both joint and sole applications. However, the fact that a petitioner no longer needs to establish one of the five “facts” to prove irretrievable breakdown under the new law, means that the overall divorce process is usually far less drawn out.

The new no-fault system should also help to fast-track applications relating to finances and child care arrangements, not least because the parties can focus on any important issues, rather than becoming side-tracked with unnecessary allegations of blame. In this way, you are far more likely to be able to reach an agreement with your former spouse as to the division of assets, as well as the custody and care of any children. You can then go on to obtain the court’s approval, prior to making an application for a final order.

Importantly, when making an application for either a financial order by consent or a contested financial order, you will need to complete another form and pay a separate fee, although it is often advisable to first seek expert legal advice. You may also want to ensure that any financial settlement has been approved by the court before applying for a final order, as this can otherwise impact any rights you may have as a spouse in relation to both inheritance and pension benefits in the event of your former partner’s death.

Decree absolute

This information pre-dates the introduction of Final Orders.

A decree absolute was the legal document necessary to bring a marriage to an end proper to April 2022. It was the court order that followed the decree nisi. Both decrees must have been made by the court for a divorce to be official, although it was only once the decree absolute had been issued that the marriage had formally ended.

Essentially, the decree absolute finalised the divorce, whilst the decree nisi declared that the court didn’t see any reason why the marriage could not be brought to an end.

A decree nisi could be applied for where the spouse did not defend the divorce petition. If the spouse contested the divorce, it was still possible to apply for a decree nisi, although the judge would need to decide at a court hearing whether or not to grant the petition.

Under the Matrimonial Causes Act 1973, prior to the Divorce, Dissolution and Separation Act 2020 (DDSA) taking effect, it was necessary to prove that the marriage had irretrievably broken down before being granted a decree nisi. This required proof of one of three prescribed fault-based facts, including adultery, unreasonable behaviour or desertion. Alternatively, proof of at least 2 years’ separation was required, provided both spouses agreed to a divorce, otherwise proof of at least 5 years’ separation was necessary.

Having been granted a decree nisi, and following a wait of 6 weeks and one day, the application for a decree absolute could be made to the court.

What part does the decree absolute play under the new divorce laws?

The decree absolute remains an essential part of the overall divorce process, but is now referred to as a ‘final order’, and the decree nisi as a ‘conditional order’. The parties no longer ‘petition’ for divorce, but rather the applicant, or applicants (if applying jointly), ‘apply’ for a ‘divorce order’.

Changes in this divorce language were 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 removes the need to make unnecessary allegations or wait for at least 2 years. Where the decision to divorce is mutual, the parties are also 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 is 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/final order?

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/final order take?

The DDSA introduced a new minimum overall timeframe for the divorce process of 6 months. This 26 week wait time is 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.

What happens if you don’t apply for a decree absolute/final order?

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/final order is out of time?

If you take more than 12 months to apply for a final order, you’ll usually have to explain this delay to the court. This doesn’t mean that the court will necessarily refuse to grant the order, although you’ll need to provide a good reason for failing to apply sooner.

Final 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

Final Order/Decree Absolute 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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