Sept 22
The parties were husband and wife who began their relationship in 2001 and married in June 2012. They had two children together and a further child accepted to be a child of the family. A prenuptial agreement had provided for the wife to receive increasing levels of financial provision upon divorce depending on the length of the marriage, measured from the date of the marriage to the date of separation. They separated in August 2013. The wife filed a petition for divorce in September 2013 on the grounds that the husband had behaved in such a way that she could not reasonably be expected to live with him and that the marriage had irretrievably broken down. In October 2013, the court certified pursuant to FPR r 7.20(2)(a) that it was satisfied that the wife was entitled to a decree, on the basis that the husband had behaved in such a way that she could not reasonably be expected to live with him and that the marriage had irretrievably broken down. Decree nisi was pronounced in November 2013. In June 2014, the parties financial claims were concluded on the basis of the prenuptial agreement. The financial remedy order therefore made provision for the wife on the basis of a marriage of under two years. Neither the husband nor the wife thereafter sought to make the decree absolute. The wife contended that the parties reconciled in about November 2014 for a period until March 2020. The husband denied reconciliation and contended that whilst the relationship was rekindled, it was not a marital reconciliation. The wife made an application in November 2021 under section 31F(6) of the Matrimonial and Family Proceedings Act 1984, to rescind the decree nisi, dismiss the divorce petition and set aside the financial remedy order, her intention being to file a fresh divorce application if successful, so that the marriage would be treated for the purposes of the prenuptial agreement as lasting for eight years, thus significantly increasing the level of financial provision to which she would be entitled. The husband filed an application under section 9(2) of the Matrimonial Causes Act 1973 for the decree nisi to be made absolute. The judge dismissed the application to rescind a decree nisi and granted the application to make the decree absolute. The wife appealed against the judge’s formulation of the test to be applied and his application of that test to the facts of the case.
On the appeal—
Held, appeal allowed. Regardless of whether an application was made for the rescission of a decree nisi under section 31F(6) of the Matrimonial and Family Proceedings Act 1984 or for an order for a decree absolute under section 9(2) of the Matrimonial Causes Act 1973, the test to be applied by the court was to ask whether the evaluative exercise carried out upon the grant of the decree nisi which led to the conclusion that it was unreasonable to expect the applicant to continue to live with the respondent was still valid in the light of subsequent events, which test applied to both elements of the decree nisi, namely the decision that the applicant could not reasonably be expected to continue to live with the respondent and that the marriage had irretrievably broken down. In applying that test, the court should refrain from carrying out an examination of the quality of the marriage, since for it to be otherwise would require the court to conduct an analysis of the nature of the marriage throughout the entire period both before and after the grant of the decree nisi, and would risk importing personal judicial mores and standards into the decision-making process. Furthermore, it was not the case that the decree would only be set aside if it would be so contrary to the interests of justice that the serious step of setting aside the order was justified, although since a decision of rescind a decree nisi was of the utmost importance, it would not be taken lightly by the court. It followed that in the present case, the judge had applied the wrong test and had fallen into error in importing a qualitative assessment of the parties’ relationship as a means of determining whether there had or had not been a reconciliation. he question as to whether there has been a reconciliation was not one to be determined by reference to the judge’s own qualitative assessment of the relationship between the parties, but by reference to objective findings of fact which would allow a judge to decide whether or not the parties were reconciled. A proper analysis of the circumstances would have led to the conclusion that there had been a reconciliation. Applying the relevant test, the conclusions reached at the granting of decree nisi that it was unreasonable to expect the wife to live with the husband and that the marriage had irretrievably broken down, were no longer valid in the light of the subsequent reconciliation. The appeal would therefore be allowed, the decree nisi rescinded and the petition dismissed (paras 36, 367, 44, 51–55, 67, 71, 72–76, 78, 79, 80, 89, 95, 98, 99).
Rebecca Carew Pole KC and Joshua Viney (instructed by Burgess Mee Family Law) for the wife.
Brent Molyneux KC and Nicholas Bennett (instructed by Alexiou Fisher Philips LLP) for the husband.