The decree nisi is soon to be abolished.
Updated: Aug 14
As noted in previous posts, the Divorce Dissolution and Separation Act 2020 became law in June 2020. The details are yet to be put in place, but no fault divorce should be available from around November 2021.We have been here before – the Family Law Act 1996 which included similar provisions, also became law but it was repealed before it actually came into effect. That seems less likely to happen this time around.
The new Act brings in certain other changes, including the possibility, for the first time, that a couple will be able to apply for a divorce jointly. It also takes the opportunity to modernise the terminology around divorce and introduce some plain English.
So, out goes the divorce petition to be replaced with “an application for a divorce order” and the “decree absolute” is replaced with “a final divorce order”. I’m not sure the new terms are any clearer – I think everyone understands perfectly well what a divorce petition and a decree absolute are. “An application for a divorce” and “a final divorce” would have been a plain English – what is a divorce order if it is not a divorce? But in the end it is a matter of opinion.
The “decree nisi” which is to be replaced by “a conditional divorce order” is another matter. Most people don’t immediately understand what a decree nisi is and it needs to be explained. The clearest way I have found to put it, is that it is a sort of halfway house to divorce. And frankly it is slightly pointless.
The decree nisi goes back to Victorian times. The history of divorce law starts, effectively, with the Matrimonial Causes Act 1857, which for the first time introduced the possibility of having a divorce in the general civil courts. Before that divorce was a matter for church courts. There was only one ground for divorce – adultery - and the court issued a simple decree of divorce with no halfway stage or decree nisi. Divorced people were then free to remarry. The Church of England forbade its clergy to marry divorcees, and continued to do so until November 2002, but the Marriage Act 1836 had introduced the option of marrying in a register office, or in churches of other denominations including nonconformist and Catholic churches. Before 1836 the Church of England had a monopoly on weddings.
But judges became concerned that married couples were colluding to get divorced when no adultery had actually taken place. It is interesting that, at that time, people evidently thought that the law should intervene to prevent couples who both wanted to be divorced, from getting divorced. Today most people see it as essentially a private matter between them, although the recent debate surrounding the Divorce Dissolution and Separation Act shows that not everyone has that opinion.
So, to deal with this judicial disquiet the Matrimonial Causes Act 1860 introduced the decree nisi. The word “nisi” (pronounced ‘nice-eye’ by lawyers but ‘knee-see’ in schools) is Latin for “unless”, so it was a decree of divorce unless there was a formal objection. There was a delay of three months during which the Queen’s Proctor could carry out investigations and, if necessary object; after that the decree of divorce was made absolute or final. The gap was increased to a minimum of six months in 1886, and then reduced to 6 weeks, as at present, by the Matrimonial Causes Act 1946.
The office of Queen’s Proctor still exists, and s/he still intervenes in divorce proceedings, but only very occasionally. Most people just wait out the six weeks, and apply for decree absolute at the first opportunity. For others it becomes a kind of milestone in the procedure. It is the stage at which the court becomes able to make most financial orders, and it is common practice to delay any application for decree absolute until financial issues have been sorted out, although it is only really relevant to do that where there are significant pension arrangements at issue.
John Pratley is an expert divorce lawyer, who has more than 25 years experience advising clients purely about divorce and related family law issues, such as the financial consequences of separating and divorcing. After establishing the first niche family law practice in Bristol, and going on to senior management roles in a national firm, John set up Apple Tree Family Law in 2018. Apple tree family Law solicitors specialise in advice about divorce and financial issues.
We are based in Bristol and Exeter, but we have clients all over the UK and further afield. We offer, simply, clear and accurate advice about divorce and family law issues, and the very best client service, for a clear and reasonable price.