Does it matter who divorces who?
It can do, mainly because there are different rules for applying for decree absolute depending on whether you are the petitioner or the respondent. Broadly speaking, the petitioner controls when the marriage is finally dissolved.
If you are the petitioner, you are allowed to apply for decree absolute once six weeks and a day have elapsed since decree nisi was pronounced. Effectively, your application is granted automatically – someone in the court office prints off two copies of the decree absolute certificate, stamps them with the official court stamp (‘seals’ them) and sends one to each of the two solicitors involved in the case. Your marriage is at an end once the certificate is sealed (although you don’t know it until your solicitor tells you – even if he telephones you straight away, you’ve already been divorced for at least 24 hours – but that’s another issue).
If you are the respondent, the rules are different. You are allowed to apply for decree absolute, but not until three months have elapsed after the petitioner’s six weeks. This means that there is a significant delay. Also, your application is not granted automatically. It is dealt with by the district judge at a short hearing. If the petitioner resists the application and argues for example that there are unresolved financial issues, you may not get your decree absolute.
So you can see that if you are the petitioner you effectively control when the marriage is finally dissolved. This can give you a negotiating advantage in financial negotiations. Say you have been negotiating for months and everything is provisionally agreed except that you are £5,000 apart on the size of the lump sum that you are going to pay your spouse out of the proceeds of sale of the house. Your spouse’s new partner is getting impatient and is putting pressure on your spouse to end the marriage so that they can get married. If you are the petitioner and your spouse is the respondent, you may be able to say “forget the £5,000 and you’ve got a deal – we’ll finalise the finances and I’ll apply for decree absolute”. Of course, such situations are not that common, but wouldn’t you rather know the rules before you decide whether to be the petitioner or let your spouse do it?
If your spouse wants to start divorce proceedings, you can avoid the problem described earlier. You should say that you will cooperate with the proceedings and send your ‘acknowledgement of service’ form to the court only if your spouse undertakes not to apply for decree absolute until financial matters have been resolved.
There can be an argument over the exact point at which financial matters have been resolved, so be specific – get an undertaking not to apply for decree absolute until the court has made an ancillary relief (i.e. financial) order. The ancillary relief order will almost certainly be made by consent, because most cases settle by agreement and contested final hearings are rare.