If you are wondering how long it takes for a judge to grant you a decree nisi after you have submitted your divorce papers to the court, the first thing to check is that you have met all the criteria necessary for you to get divorced. Simply deciding you want a divorce because you no longer wish to be married to your spouse is not, on its own, sufficient grounds for divorce. So, let’s first make sure that the judge will not throw out your application for a decree nisi on a technicality.
The following is your checklist, and in addition to having been married for a minimum of twelve months (this is compulsory) your reasons for wanting a divorce must meet one of the following criteria for you to have sufficient grounds for divorce:
- You and your spouse have been separated for a minimum of two years and that the separation has been mutually consensual
- You and your spouse have been separated for a minimum of five years, and the separation was not mutually consensual
- Your partner has deserted you
- Your partner has been subjecting you to what is referred to as ‘unreasonable behaviour.’
- Your partner has committed adultery
If you have not been married for at least a year, you cannot apply for a divorce, and nor can you apply for a divorce if you cannot apply any of the above options, it is that simple.
So, what does applying for a decree nisi involve, and what is the difference between a decree nisi and a decree absolute?
What is decree nisi?
A decree nisi, in basic terms, is a notice of intention to divorce your spouse, and that you have the legal right to divorce them. Once your decree nisi has been granted, that is confirmation by a judge that they agree to your right and reasoning for wanting a divorce. However, the decree nisi is not the dissolution of your marriage. Your marriage only becomes legally dissolved after the granting of the decree absolute.
When you submit your application for a decree nisi, you must also include your spouse’s response to your divorce petition. This, however, may not be as easy to obtain as you may have hoped as it is not unusual for a spouse who does not want to be divorced to refuse to acknowledge receipt of the divorce petition. In the process of applying to the court for a divorce, your spouse should be sent a copy of the Divorce Petition (Form D8) which will include an Acknowledgement of Service form. Your spouse must, legally, reply to the court within eight days of receipt of the Divorce Petition.
If you have been unable to contact your spouse (as can happen in cases of desertion) or they refuse to sign and return the Acknowledgement of Service, then you must try the following before submitting your application to the court for a decree nisi:
- Apply for Deemed Service – If your spouse has sent you a text message or some form of communication via a messenger app that makes it clear they are aware of your intention to divorce them. It acknowledges they have received a copy of your divorce petition, and you can apply for what is referred to as Deemed Service. Here you apply to the court for permission to proceed with the divorce without your spouse having signed and returned the Acknowledgement of Service form by showing them alternative evidence that your spouse has received a copy of the divorce petition.
- If your spouse has failed to acknowledge receipt of the copy of your divorce petition, you can have the court instruct a Process Server who will physically deliver a copy of your application for divorce to them, and ‘serving’ your spouse with divorce papers will be sufficient for the court to proceed with your application, even if your spouse refuses to return the Acknowledgement of Service.
- If the Process Server is unable to locate your spouse, you can then apply for an Alternative Service, which allows you to serve the papers on a relative of your spouse, or your spouse’s employer.
- If all else fails, you can apply for a Dispensed Service, whereby you will need to show the court that you have made every possible effort to serve your spouse with a copy of your divorce petition but have not succeeded.
So, on the basis that you meet the legal requirements that will enable you to divorce your partner, and the court has received a signed copy of the Acknowledgement of Service from your spouse or proof that every effort has been made to ensure your spouse is aware of your intention to divorce them, there should be no reason why the judge does not grant your decree nisi. The question you have been waiting for the answer to is “How long do I have to wait to get my decree nisi?”
Legally, the judge must wait for a minimum of 43 days from the date of submission of the application before they can grant the decree nisi. However, this is not an automatic process and the time to grant a decree nisi (and a decree absolute) depends on the availability of judges and clerical staff.
The current COVID-19 pandemic has had a massive effect on so much of everyday life, and the divorce process has not been excluded from that. Before the outbreak of COVID-19, it was taking approximately 12 weeks to get a decree nisi granted. However, according to figures recently released by the government, this timeline had increased to 14 weeks.
The courts are also aware of the fact that as a result of the pandemic, many applications for a divorce have been postponed. At the same time, it is also anticipated that there will be an increase in the number of divorce petitions as a consequence of increases in cases of domestic abuse as a consequence of the pandemic (grounds for a divorce due to ‘unreasonable behaviour’), where many couples have been forced to live in close proximity during periods of lockdown. This increase in divorce petitions could well create an even greater backlog.
Deciding whether to divorce is a tough, complex, and a controversial subject. There are no right or wrong answers, nor are there any magical solutions. Find a family lawyer specialised in divorce proceedings to help with your case.