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Can divorce proceedings be stopped?

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Walker Family Law
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Can divorce proceedings be stopped?

Few people commence divorce proceedings without proper consideration. – they will only do so if they are sure that the marriage has broken down irretrievably. Even so, they can sometimes have a change of heart, and reconciliation is attempted. But can divorce proceedings be stopped, and if so, what is involved?

The basics

The first thing to say is that whether or not the divorce can be stopped depends upon the other party. If both parties want it to stop then it can be stopped. But if one party wants the divorce to continue, then it is unlikely that the divorce can be stopped. If that party is the one who commenced the divorce then they can simply proceed with their divorce petition, and if they did not commence the divorce, then they can finalise the divorce themselves if the decree nisi has been pronounced, or cross-petition if it has not.

The second thing to say is that divorce proceedings do not have a life of their own. They are not ‘automatic’ once started. Each stage of the divorce (decree nisi and decree absolute – see below) will only take place if a party applies for it. Thus, if no one applies for the divorce to proceed, then it is effectively stopped. However, the divorce proceedings will remain on the court file, and could therefore be ‘resurrected’ at a later date.

This may not be what is wanted, in which case it may be necessary to take other steps. What steps, if any, depend upon what stage the divorce has reached. A divorce takes place in three parts: between the issuing of the divorce and the pronouncement of the decree nisi, between the decree nisi and the decree absolute, and after the decree absolute.

Before decree nisi

Stopping the divorce before decree nisi is relatively simple, as the court has not yet made any orders.

However, the divorce petition will still be on the court file, and this may not be what is wanted.

What to do to ‘get rid’ of the petition depends upon whether the other party has been served with the divorce papers.

If they have not been served, the party who issued the divorce may simply write to the court to request that the petition be withdrawn.

If the other party has been served with the papers then, if both parties agree, they can apply to the court to have the petition dismissed.

After decree nisi

The decree nisi is when the court pronounces that the person(s) seeking the divorce (usually the petitioner – i.e. the person who issued the divorce petition) is entitled to the divorce.

The decree nisi does not finalise the divorce – that does not happen until the court makes the decree absolute – but if the parties do not want to proceed with the divorce they will want to have the decree nisi cancelled (the legal term is ‘rescinded’).

Either party can apply to the court for the decree nisi to be rescinded. The court will grant the application, provided that the other party consents.

After decree absolute

The decree absolute can be applied for after six weeks have elapsed since the pronouncement of the decree nisi. The decree absolute finalises the divorce.

Once the court has made the decree absolute the divorce is over and it is too late to step back. The decree absolute is final, and cannot be rescinded unless (very unusually) there has been some irregularity.

The only thing to do if a reconciliation occurs after decree absolute is to remarry (it does happen!).