Section 60 of the Matrimonial Causes Act (Chapter 282) makes the decree nisi become absolute automatically.
Sections 60(2) and (3) — the two rules
The decree nisi becomes absolute by force of this section at the expiration of —
(a) a period of three months after the making of the decree; or
(b) a period of 28 days after the making of an order under section 59(2),
whichever is the later.
The decree nisi becomes absolute by force of this section on the expiration of three months after the making of the decree.
The words “by force of this section” matter. Neither party need apply, and the court need do nothing further. The decree becomes absolute by operation of law when the period expires.
Section 59 applies where there are children of the marriage under 16 at the date of the decree nisi, or children the Court has ordered it to apply to. Where it applies, the three months runs from the decree nisi and the 28 days from the section 59(2) order — and the later date governs.
Section 60(4) — extending or shortening the period
The Court, or a court in which an appeal has been instituted, may — whether before or after disposing of the proceedings or appeal, and whether or not a previous order has been made —
(a) having regard to the possibility of an appeal or further appeal, make an order extending the period; or
(b) if satisfied that there are special circumstances that justify it, make an order reducing the period.
An extension requires only regard to the possibility of an appeal. A reduction requires special circumstances.
That reflects what the waiting period is for. Extending it preserves the opportunity to challenge the decree; shortening it removes a protection, and so needs justification — serious illness, an imminent birth, or a pressing need to regularise status.
Sections 60(1) and (5) — the effect of an appeal
(a) an appeal, an application for leave to appeal, or an intervention, against or arising out of (i) the decree nisi, or (ii) an order under section 59; or
(b) an application under section 62 or 63 for rescission, or an appeal or application for leave arising out of such an application.
The decree nisi, unless reversed or rescinded, becomes absolute —
(a) at the expiration of 28 days after the day on which the appeal is determined or discontinued; or
(b) on the day it would have become absolute under subsection (2) or (3) had no appeal been instituted,
whichever is the later.
Note that “appeal” in section 60(1) includes an intervention and an application for rescission. So a Part VI intervention, or an application on the ground that the parties have reconciled, holds the decree in the nisi stage until determined.
Section 60(6) — if a party dies
A decree nisi does not become absolute by force of this section where either of the parties to the marriage has died.
The consequences are substantial. The survivor is a widow or widower, not a divorced person:
- Succession rights as a surviving spouse are preserved, on intestacy and under any will;
- Superannuation, workers’ compensation and other spousal benefits continue to be available;
- The survivor may remarry — but as a widow or widower, and section 37(10) of the Marriage Act (Chapter 280) requires evidence of the death rather than of a divorce.
Note the contrast with section 43(2): while a decree of judicial separation is in operation, intestate property devolves as if the deceased had survived the other party — so the separated spouse does not inherit. A decree nisi carries no such consequence.
Section 61 — proving the decree absolute
(1) When a decree nisi becomes absolute, the Registrar of the Court shall prepare and file a memorandum of the fact and of the date.
(2) Any person is entitled, on application to the Registrar and on payment of the appropriate fee, to receive a certificate signed by the Registrar that the decree nisi has become absolute.
(3) Such a certificate is, in all courts and for all purposes, evidence of the matters specified in it.
The certificate is what a party produces to a celebrant under section 37(10) of the Marriage Act before remarrying, and to any authority that requires proof of status.
Note that any person may obtain one, not only the parties — which allows an intended spouse, an executor or an insurer to verify the position.
Section 34 then provides that, where a decree of dissolution has become absolute, a party may marry again as if the marriage had been dissolved by death. And section 64 provides that no appeal lies from a decree of dissolution or nullity of a voidable marriage after the decree has become absolute.
Sources
- Matrimonial Causes Act (Chapter 282) — ss 34, 43, 58–64, 65–71
- Marriage Act (Chapter 280) — ss 37, 57
Before relying on anything here, read the current text of the Marriage Act (Chapter 280) and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.