About the Author
Michelle McDermott
Published on April 5, 2024
Key Takeaways
- In Australian family law, while “Decree Nisi” and “Decree Absolute” terms are no longer used, the divorce process inherently includes similar stages—initial approval and finalisation— the decree nisi is the initial approval and the decree absolute is the final decree ending the marriage legally.
- The initial divorce application, akin to a Decree Nisi, requires demonstrating a 12-month separation, marking the beginning of formal proceedings. The final divorce order, similar to a Decree Absolute, occurs automatically after a waiting period of one month and one day, officially dissolving the marriage.
- Australia recognises divorce decrees from other countries, provided they are legally valid in the issuing country, ensuring that international divorce judgments are respected within the Australian legal system.
Navigating a divorce can feel overwhelming, not only is your life changing but you have to deal with many legal matters, including deciphering various legal terminology, such as the focus of this article: decree nisi and decree absolute.
Though not frequently mentioned in modern legal discussions, these terms were used in Australia up until the implementation of the Family Law Act 1975. Before this Act, Australia followed a fault-based divorce system inherited from British law, where a “Decree Nisi” was a provisional order for divorce and a “Decree Absolute” was the final order that officially ended the marriage.
In this article, we aim to clarify these terms, and how they can be likened to the current Australian family law divorce process, to signify critical phases in the divorce procedure.
Understanding these terms offers insights into the development of divorce proceedings in Australia, illustrating the impact of historical practices on today’s legal procedures.
Whether you are undergoing this transformative phase yourself or supporting someone who is, our team of divorce lawyers Sydney is here to help make the transition towards a fresh start easier for you.
What is a Decree Nisi in Australian family law?
In the context of today’s Australian family law system, the term Decree Nisi refers to a provisional order, indicating that the Court agrees a marriage should end, provided no further objections are raised.
This conditional decree is a vital step in the divorce proceedings, serving as the legal system’s acknowledgement that the marriage has irretrievably broken down.
Although the decree nisi is leading towards the dissolution of marriage, at this stage a couple is still legally married and will be until the decree absolute (divorce order) is granted.
Applying for a Decree Nisi
The process of applying for a Decree Nisi in other jurisdictions aligns with initiating a divorce application in Australia. This step is fundamentally about seeking the court’s approval for a preliminary divorce order, marking the formal commencement of the divorce proceedings.
To apply for divorce in Australia, couples must demonstrate they have been separated for at least 12 months and one day. This application is the first move in officially legally dissolving the marital bond and requires careful attention to detail in the submission of all necessary documentation to the Federal Circuit and Family Court of Australia.
How long does it take to receive a Decree Nisi?
Receiving a decree nisi, is essentially the equivalent of the divorce being granted in Australia, and the time it takes for this to occur is subject to varying timeframes which are heavily influenced by the Court’s processing times and the specific details of the divorce application.
Key factors that could impact the processing times include the quality and accuracy of the application details. A well-prepared application, free from errors and omissions, ensures a more efficient processing time.
Your divorce application could be held up if:
- The provided marriage certificate is invalid or unreadable
- Relevant details are missing in the divorce application
- A low-quality copy of the marriage certificate is submitted
What is Decree Absolute in Australian Family Law?
The Decree Absolute, or the equivalent of the Final Order, is the final legal step that officially ends a marriage in Australian family law. Not only does it dissolve the marriage, but it also enables both parties to remarry.
When a divorce is granted in Australia (the equivalent of the Decree Nisi), it will become final (the equivalent of the Decree Absolute) one month and one day later.
Applying for a Decree Absolute
In other legal systems, you may apply for a Decree Absolute, but in Australia, this is essentially the equivalent of the finalisation of the divorce in Australia. Unlike in those systems, there is no separate application process for what would be considered the “Decree Absolute.” Instead, this step is an integrated part of the divorce process, automatically occurring.
Once the preliminary divorce order (the Decree Nisi) is granted, and the subsequent waiting period of one month and one day has passed, the divorce automatically becomes final. A copy of your proof of divorce (divorce order) will be available to download from the Commonwealth Courts Portal and will not be mailed to you.
This finalisation, effectively the Australian equivalent of receiving a Decree Absolute, legally ends the marriage, allowing both parties to remarry.
This process emphasises the streamlined nature of the Australian system, which has been designed to facilitate a clear path through the legal dissolution of a marriage without the need for additional steps or applications.
Note: If you were married and divorced prior to the Family Law Act 1975 implementation, then you will have applied for a Decree Nisi and Decree Absolute as part of the divorce process. To get a copy of these documents, you can apply for them here.
How long does it take to receive a decree absolute?
After the divorce order is issued, the decree absolute is the final legal step that becomes effective after the mandatory waiting period of one month and one day.
Difference between Decree Nisi and Decree Absolute
While “Decree Nisi” and “Decree Absolute” are not terms used in modern Australian family law, the current divorce process includes stages with similar functions. Understanding these stages can help clarify how a divorce progresses from initial approval to final dissolution.
| Decree Nisi | Decree Absolute | |
|---|---|---|
| Equivalent stage in Australia divorce process | Initial divorce order (court’s approval of the divorce application) | Final divorce order (automatic after the waiting period) |
| Legal Status | Provisional; the couple remains legally married. | Final; the marriage is legally dissolved. |
| Timing | Issued once the court agrees to end the marriage, pending any objections. | Automatically becomes final one month and one day after the initial order. |
| Function | Confirms legal grounds for divorce are met. | Officially ends the marriage, allowing for remarriage. |
| Action Required | Wait for the finalisation period; no further action needed. | No further action needed; the order finalises automatically. |
In summary, the Decree Nisi stage is similar to the initial divorce order in Australia, where the court approves the divorce application but does not yet dissolve the marriage. The Decree Absolute corresponds to the final divorce order, automatically finalising the divorce and legally ending the marriage after the waiting period.
Frequently Asked Questions
What are the legal requirements for applying for a decree nisi in Australia?
In modern Australian family law, while the term “decree nisi” is not used, the requirement for applying for a divorce includes demonstrating an irretrievably broken marriage, highlighted by a 12-month separation. This separation is a key legal requirement under the no fault divorce system, ensuring that the decision to divorce is considered and final.
Can I remarry immediately after my decree absolute is granted?
Yes, the granting of a decree absolute, or final order, legally concludes your previous marriage, allowing you to remarry. It’s the legal acknowledgment that your marriage has officially ended.
Can a decree absolute be reversed?
Generally, a decree absolute or final order is final and cannot be reversed. Should parties choose to reunite, they would need to remarry, adhering to the legal process for marriage.
Does Australia recognise decrees from other countries?
Yes, Australia recognises divorce decrees from other countries if the divorce is legally valid in the country that granted it. This ensures international divorces are respected within Australian legal frameworks.
Can a Decree Nisi or Absolute be expedited?
In certain exceptional circumstances, such as serious health concerns or urgent personal situations, it may be possible to request an expedited process for obtaining a divorce order. This usually requires presenting compelling reasons to the court and supporting evidence.
Speak to a divorce lawyer
At Unified Lawyers, as your family lawyers Australia, we understand the emotional and legal complexities involved in separation and divorce.
No matter where you are in your journey or across Australia, our dedicated team is here to provide expert guidance and support.
We offer a free initial consultation to help you understand your options and ensure you’re equipped with the knowledge to move forward confidently.
Let us assist you through these difficult transitions with compassion and expertise, paving the way to a new beginning. Reach out today, and let’s take the first step together. Call us on 1300 667 461 or book online using the button below.
Published on April 5, 2024
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