Applicants in a divorce can apply for the final order (formerly known as a decree absolute), in order to bring their marriage legally to an end six weeks after the date of the conditional order in the divorce application.
However, normal practice is to delay applying for the final order until all financial issues between them have been resolved and the court has made a financial order. If the financial order contains a pension sharing order, normal practice is also to delay the application for the final order until 28 days after the date of the pension sharing order, in order to protect the position of the party in whose favour the pension sharing order has been made.
I often find that applicants for a divorce worry that if the application for the final order is not made promptly, they will lose their right to apply for it. Matters are not helped by the HMCTS divorce portal, which can give the impression that the final order must be applied for once the six week and one day period has expired; the portal often describes the application as being “overdue”.
It is nothing of the kind. In fact, it is very normal for the final order to be made many months, sometimes even years, after the conditional order is made. There is no cut-off date by which it must be done.
However, it is possible that the court might decline to make the final order depending on the parties’ circumstances.
Before the introduction of no-fault divorce in April 2022, the Family Procedure Rules 2020 stated at Rule 7.32 that:
(3) Where the notice is received more than 12 months after the making of the decree nisi or the conditional order, it must be accompanied by an explanation in writing stating—
(a) why the application has not been made earlier;
(b) whether the applicant and respondent have lived together since the decree nisi or the conditional order was made, and, if so, between what dates;
(c) if the applicant is female, whether she has given birth to a child since the decree nisi or the conditional order was made and whether it is alleged that the child is or may be a child of the family;
(d)if the respondent is female, whether the applicant has reason to believe that she has given birth to a child since the decree nisi or the conditional order was made and whether it is alleged that the child is or may be a child of the family.
Therefore, if the decree nisi (now known as a conditional order) was more than 12 months old, the court required the applicant to seek permission to apply for the final order, to explain why the application had been delayed, to confirm that parties had not cohabited f since the decree nisi, and that no child had been born to the wife since the decree nisi was made (or, in the case of a male applicant, that as far as he was aware, no child had been born to a female respondent).
If the court was notified that the parties had been cohabiting or if a child had been born, the court could decline to make the decree absolute. This was rarely a problem in my experience. In some cases, the parties might have carried living at the same address, but the court could be assured that they were nevertheless living separately there; I cannot recall a court ever wanting an actual evidence of that, save perhaps for a written statement to that effect. I cannot recall ever having a case where a child of the parties was born after the decree nisi, and a court would not have worried about one of the parties having had a child by a new partner.
No-fault divorce was introduced in April 2022 when the Divorce, Dissolution and Separation Act 2020 came into force and the rules then changed. Now, when a conditional order is more than a year old, the applicant has to provide the court with an explanation why the application has not been made during the 12 month period after the conditional order.
The reason for the delay is almost always the same. The applicant was waiting until financial matters had been resolved and until the court had made the financial order.
The Family Procedure Rules 2010 are now very vague about what is required:
7.19.—
(5) Where the notice is received more than 12 months after the making of the conditional order, it must include or be accompanied by an explanation in writing stating why the application has not been made earlier.
(6) Where paragraph (5) applies, the court may—
(a) require the applicant to verify the explanation with a statement of truth; and
(b) make such order on the application as it thinks fit, but where it orders the conditional order to be made final that order is not to take effect until the court is satisfied that none of the matters mentioned in paragraph (4)(a) to (h) applies.
The Rules do not say what reasons might be justifiable for the delay. The vagueness of the new rules had to be considered in the case pf HK v SS in early 2025.
In HK v SS, the parties had separated in 2022. The applicant issued a divorce application in May 2022 and then applied for a conditional order in September 2022. The conditional order was pronounced by the court 27 October 2022. Therefore, the applicant was able to apply for the final order on or after 9 December 2022 at the earliest.
The parties reconciled in March 2023, but separated again 15 months later in June 2024.
When the applicant applied to the court for the final order, he or she entirely properly notified the court that there has been an attempt at a reconciliation, which had lasted for 15 months. The matter came before a deputy district judge who directed that the applicant should file further information. The applicant’s solicitors emailed the court;
“In response to paragraph (2) of the attached Order made by Deputy District Judge Wilkinson, the Applicant instructs that the parties reconciled in March 2023, but the marriage sadly broke down again around 2 months ago”.
The deputy district judge therefore referred the matter to His Honour Judge Simmonds, the national lead judge for divorce, as there was “a lack of guidance as to how the court should exercise its discretion when parties had reconciled for a significant period’ under the Divorce, Dissolution and Separation Act 2020.
HHJ Simmonds therefore had to decide what the law actually was. In effect, the judge had to create law where none exists.
When politicians criticise judges, they often complain that much of the law is “judge-made” and therefore not democratic. What they generally don’t seem to appreciate is that parliament makes the law, and the court implements the law. Where the law is unclear, it interprets the law. Usually it is a matter of trying to understand what the law was intended to be and how it should be applied in the particular circumstances of the case.
However in this case, there was no actual law. The judge therefore had to be creative in deciding what the law shodu be.
HHJ Simmonds noted the test applied by the court in 2023 in a fault-based divorce case, Olga Cazalet v Walid Abu-Zalaf : ‘Is the evaluative exercise carried out upon the granting of decree nisi which led to the conclusion that it was unreasonable to expect the applicant to live with the respondent still valid in the light of subsequent events?’ The court therefore looked at whether subsequent events invalidated the basis on which the conditional order was made.
The judge explained in his judgment that “There are many reasons for delay where the Court will exercise its discretion and grant the final order
- The delay has been to allow the parties to resolve their finances.
- Due to ill health
- As a result of some other family matter (a child or other family member has been unwell) and a party or parties have concentrated on that
HHJ Simmonds also noted that it is generally considered right that parties in a divorce should not be dissuaded from attempting reconciliations. Reconciliation may take a while to work, so a short period of only a few months (or maybe a year or even 15 months) is not enough to give it a fair chance to succeed (or to fail). The judge also noted that under the old law, one of the ways to get a divorce was to cite the fact of two years’ separation (with consent to a divorce).
Therefore, the judge decided that as the parties’ attempt at reconciliation lasted no more than two years, then that should not prevent them from divorcing. The judge said, “They should not feel the pressure of an artificially imposed court timetable.”
Therefore the court can decline to make the final order where the parties have reconciled for a period of up to two years before the application for the final order is made. If it refuses to do so, a fresh divorce application just be commenced. The judge commented that “if I refuse the Application either party would be able to issue a new divorce application the following day.”
An entirely sensible decision in my view, and one that was necessary because the politicians who drafted and passed the new divorce law failed to draft it properly in the first place.
12 January 2026
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