What Is a Decree Nisi and How Does the Court Grant It?

What is a decree nisi?

A decree nisi is a conditional court order saying your marriage may be dissolved. “Nisi” is Latin for “unless”: the divorce becomes final unless there is a good reason to stop it.

Under Section 61 of the Law Reform (Marriage and Divorce) Act 1976 (LRA 1976), every divorce is first granted as a decree nisi. In effect, the court says: “There are grounds for this divorce, but we will wait before making it final.”

It applies only to civil marriages under the LRA 1976.

How does the court grant it?

It starts when one or both spouses file a divorce petition in the High Court:

• Joint petition (Section 52): you both agree to divorce and file together.
• Single petition (Section 53): one spouse files and must prove the marriage has broken down and cannot be saved.

For a single petition, Section 54 sets out four facts that can prove breakdown: adultery, unreasonable behaviour, desertion for at least two continuous years, or living apart for at least two continuous years. You must prove at least one. Living apart does not need your spouse’s consent.

Once satisfied, the judge grants the decree nisi in court.

What happens at the hearing?

Both of you, or your lawyers, attend. The petitioner’s lawyer presents the petition and supporting affidavit (sworn statement). The respondent can agree or object.

If the divorce is agreed, the hearing is often short. The judge checks the papers, confirms you both consent and grants the decree nisi. In a contested divorce, there is a full trial.

Under Section 54(2), the court must consider all the circumstances, including how any children will be affected, before deciding whether to grant the divorce.

What does it mean for you?

You are still legally married until the decree nisi is made absolute. Neither of you can remarry during this time.

Section 61(1) says the decree nisi cannot be made absolute until three months have passed, unless the court sets a shorter period. After that, the spouse who was granted the decree applies to make it absolute. If they do not, the other spouse may apply after a further three months (Section 61(2)).

The waiting time leaves room for a change of heart. It also gives time to settle property, maintenance and custody.

What should you do next?

Keep a certified copy of the decree nisi somewhere safe. You will need it to apply for the decree absolute.

Use this time to settle what is still open: custody, property and maintenance. Settling these first can make the final stage quicker.

You can share this decree nisi guide with your spouse so you both know the steps.

Looking to engage a divorce lawyer? If you are unsure what to do while waiting for your decree absolute, request independent lawyer contact via WhatsApp: Request Lawyer Contact. For general information, use our guides and tools.