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When should I apply for my Final Order of Divorce or Dissolution of Civil Partnership?

A photo of Judith Wheeler
16th April 2024

The Final Order (formerly known as Decree Absolute) in Divorce/Dissolution proceedings is the Order which legally dissolves the marriage/Civil Partnership and concludes the Divorce/Dissolution. It is significant because it affects not only the personal rights of the parties to the marriage/Civil Partnership, but is also conclusive as to a person’s status to the rest of the world.

The recent case of Williams and Williams [2024] EWHC 733 (Fam) serves as a stark reminder to lawyers and parties to Divorce/Dissolution proceedings alike of the significance of a Final Order. In that case, the Court refused to set aside a Final Order in circumstances where the solicitor for the wife had made the application via the Court’s online portal in error. The solicitor had thought that she was applying for a Final Order in a different case.

There are very few circumstances in which a Final Order will be set aside save for where there has been procedural irregularity or fraud. The opportunity to challenge a Divorce/Dissolution arises both prior to the Decree Nisi/Conditional Order and Decree Absolute/Final Order stages.

In the Williams case, Sir Andrew McFarlane stated that it is “in the public interest that a Final Order of Divorce should be unimpeachable when “granted by a Court with competent jurisdiction and after compliance with the correct procedural requirements”. A Final Order made without procedural irregularity should stand for all the world”.

Therefore, if the Final Order/Decree Absolute has been granted by a Court with competent jurisdiction and compliance with the correct procedure then the Order will stand.

Whilst one may feel a degree of sympathy for the lawyer who made the error, after all none of us are infallible, it is concerning that it is now more common for the parties to a marriage/civil partnership to be solely responsible for managing their online divorce process. How often is the application for the Final Order being submitted without the necessary knowledge of the consequences of that Final Order being made?

It is perfectly feasible to conclude a Divorce/Civil Partnership and legally dissolve a marriage/Civil Partnership without ever having contemplated, let alone completed, the negotiation of a financial settlement. The proceedings of themselves do not secure any financial resolution, however, concluding the Divorce/Civil Partnership may inadvertently have an impact upon the financial circumstances of either or both parties.

When can the application for a Final Order be made?

An application for a Final Order can be made six weeks and one day following the pronouncement of the Conditional Order (formerly Decree Nisi). It is prudent, however, to leave the application in abeyance until such time as the terms of a Financial Remedy Order have been agreed and approved by the Court in the form of a Consent Order or imposed within contested Financial Remedy proceedings by the Court.

The usual reasons for delaying the submission of the application for the Final Order are:-

  1. If one of the parties to the marriage dies after the Final Order has been granted, but before the Financial Remedy Order has been approved by the Court then the surviving spouse may lose out on death benefits to which they would otherwise be entitled as a widow/widower under the terms of the pension scheme(s) of the deceased spouse.
  2. Maintaining spouse/civil partner status might be important in terms of maintaining rights of occupation at a former family home. Where a Home Rights Notice has been registered against the title of matrimonial property owned solely by the other spouse then those Home Rights are extinguished upon the pronouncement of the Final Order.
  3. There can be tax consequences if there are Trusts and off-shore assets.

Equally, it can be important that once the Financial Remedy Order has either been imposed or approved by the Court then the application for the Final Order is made promptly. The Financial Remedy Order is usually expressed as being made subject to the Final Order being pronounced and therefore if the Final Order is not pronounced and a party to the marriage dies between the Financial Remedy Order being made, but prior to the Final Order being pronounced then the terms of the Financial Remedy Order will not be effective. Whilst there may be redress under the terms of other legislation for the surviving spouse/civil partner in those circumstances, it emphasises the need for caution and careful timing.

If a Pension Sharing Order is being made then that Order will take effect (the Transfer Day) from the date of the Final Order or 7 days after the time for appeal ie 28 days after the Order. Therefore, if a Financial Remedy Order includes a Pension Sharing Order then it is appropriate to wait 28 days before applying for the Final Order. If a payer dies after the Financial Remedy Order and Final Order have been made, but prior to the Transfer Day then the Pension Sharing Order cannot take effect. In those circumstances the surviving spouse/civil partner has lost their spouse/civil partner status because a Final Order has been made, but neither can the Pension Sharing Order be implemented.

As will be evident, applying for the Final Order should be a carefully considered decision and should be determined based on the facts of each case.

If you require further advice and information regarding your own Divorce/Civil Partnership proceedings or any other aspect of your separation then please contact a member of our family team - Judith Wheeler (Leamington Spa 01926 887700) or Nicola Starbuck (Hinckley - 01455 610747) who will be pleased to advise you.