Decree Nisi and Decree Absolute in Australian family law – Divorce

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 Court’s preliminary order,
indicating that it 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 applying 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 legal document 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 legal dissolution of the
marriage becomes final after a mandatory waiting period of one
month and one day.

Difference between Decree Nisi and Decree Absolute

In Australian family law, while the specific terms Decree Nisi
and Decree Absolute are not utilised these days, the divorce
process effectively encompasses stages that serve similar functions
to these decrees, illustrating a universal progression in the
dissolution of marriage. The key difference lies in the nature and
finality of these stages:

• The stage of the divorce process that is the equivalent of the
  Decree Nisi involves the court’s initial approval of the
  divorce application, indicating that the legal grounds for divorce
  have been met, pending a mandatory waiting period.




• The equivalent of a Decree Absolute in Australian family law is
  the automatic finalisation of the divorce after the waiting period,
  legally dissolving the marriage and the final orders are now in
  effect.

Thus, the distinction between these two stages reflects the
transition from being provisionally to officially divorced.

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.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.