Decree absolute is the second and final decree in divorce proceedings, the first being decree nisi. The petitioner can apply for decree absolute six weeks and one day from decree nisi. If the petitioner does not apply, the respondent can apply three months later. Until decree absolute is made, the parties remain married to each other. Divorcing couples sometimes agree to delay applying for decree absolute until the finances are resolved, as there may be tax savings on transfers between spouses and death in service benefits under pensions are not automatically payable to one spouse (usually the wife) upon the other’s death if they are divorced.
In this case, the Wife had relied on the Husband’s assurances that she could benefit from his pensions and private health insurance and so had not taken out policies of her own. She alleged she would therefore suffer detriment if decree absolute was made before the financial proceedings had been concluded. She wanted to delay decree absolute to allow her to investigate whether the Husband’s undertakings would provide her with equivalent benefits.
The Court ruled that it does have an inherent power to delay making decree absolute, but that power can only be exercised where there are special circumstances. There were no exceptional circumstances here and no disadvantage would be caused by making decree absolute. The fact that the financial application was outstanding was not in itself a reason to delay the divorce (confirming the earlier decision of Re G (decree absolute: prejudice) [2003] 1 FLR 870).
This case demonstrates the importance of obtaining (at an early stage in divorce proceedings) an undertaking from the other side’s solicitors not to apply for decree absolute until the finances are resolved.
Elizabeth Field