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You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> HK v SS [2025] EWFC 5 (B) (14 January 2025) URL: https://www.bailii.org/ew/cases/EWFC/OJ/2025/5.html Cite as: [2025] EWFC 5 (B) |
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B e f o r e :
____________________
HK |
Applicant |
|
- and – |
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SS |
Respondent |
____________________
____________________
Crown Copyright ©
HHJ Simmonds:
a) Whether a conditional order should be made final where parties have reconciled for a period of 15 months following the granting of the conditional order
b) If not, whether the conditional order should be rescinded, and the divorce Application be dismissed.
c) Generally, how the Court should exercise its discretion pursuant to r.7.19(6)(b)
Relevant Factual Background
"In response to paragraph (2) of the attached Order made by Deputy District Judge Wilkinson, the Applicant instructs that the parties reconciled in March 2023, but the marriage sadly broke down again around 2 months ago".
Legal Principles
Rule 7.9
(4) An application under this rule must be accompanied by a statement-
a) stating whether there have been any changes in the information given in the application.
b) confirming that, subject to any changes stated, the contents of the application are true; and
c) where the acknowledgement of service has been signed by the other party to the marriage or civil partnership, confirming that party's signature on the acknowledgment of service.
(a) no application for rescission of the conditional order is pending;
(b) no appeal against the making of the conditional order is pending;
(c) no order has been made by the court extending the time for bringing an appeal of the kind mentioned in sub-paragraph (b), or if such an order has been made, that the time so extended has expired;
(d) no application for an order of the kind mentioned in sub-paragraph (c) is pending;
(e) no application to prevent the conditional order being made final is pending;
(f) the provisions of section 10(2) to (4) of the 1973 Act (12) or section 48(2) to (4) of the 2004 Act(13) do not apply or have been complied with;
(g) any order under section 10A(2) of the 1973 Act(14) has been complied with; and
(h) where the conditional order was made on the ground in section 12(1)(g) of, or paragraph 11(1)(e) of Schedule 1 to, the 1973 Act(15), or was made under section 12A(3) of the 1973 Act(16) in a case where section 12(1)(g) of the 1973 Act applies, or the conditional order was made under section50(1)(d)
of the 2004 Act—
(i) there is not pending a reference under section 8(5)
of the Gender Recognition Act 2004(17), or an application under section 8(
5A)
of that Act(18), in respect of the application on which the interim gender recognition certificate to which the application relates was granted;
(ii) that interim certificate has not been revoked under section 8(6)(b) of that Act; and
(iii) no appeal is pending against an order under section 8(6)(a) of that Act.
(5)
Where the notice is received more than 12 months after the making of the conditional order, it must include or be accompanied by an explanation in writing stating why the application has not been made earlier.
(6) Where paragraph (5)
applies, the court may—
(a) require the applicant to verify the explanation with a statement of truth; and
(b) make such order on the application as it thinks fit, but where it orders the conditional order to be made final that order is not to take effect until the court is satisfied that none of the matters mentioned in paragraph (4)(a) to (h) applies
Rule.7.34 Either party to the marriage or civil partnership concerned may apply –
a) after the conditional order has been made but before it has been made final; or
b) after a judicial separation order or separation order has been made;
for the recission of the order on the grounds that the parties are reconciled and both consent to the recission
(3) Where notice is received more than 12 months after the making of the decree nisi or the conditional order, it must be accompanied by an explanation in writing stating-
a) why the application has not been made earlier;
b) whether the applicant and respondent have lived together since the decree nisi or the condition order and, if so, between what dates;
c) if the applicant is female, whether she has given birth to a child since the decree nisi or the conditional order was made and whether it is alleged that the child is or may be a child of the family;
d) if the respondent is female, whether the applicant has reason to believe that she has given birth to a child since the decree nisi or conditional order was made and whether it is alleged that the child is or maybe a child of the family
(4) Where para (3) applies the court may;
a) Require the applicant to file an affidavit verifying the explanation and to verify the explanation with a statement of truth, and;
b) Make such order on the application as it thinks fit, but where it orders the decree nisi to be made absolute or the conditional order to be made final that order is not to take effect until the court is satisfied that none of the matters mentioned in para (2) (a) to (i) applies.
"In looking at the period of cohabitation it was argued that the quality of the cohabitation should be examined in each case to see how long the reconciliation continued. I am not convinced that that is the correct approach in view of the wording of many parts of section 2 of the Matrimonial Causes Act 1973. It is also extremely difficult to assess such a test and although cohabitation will always be with the hope of reconciliation, it is the living together which is the period which must be examined, in my judgment. All the factors which I have mentioned above lead me to the inevitable conclusion that the inference originally drawn under the special procedure, that the wife could not reasonably be expected to live with the husband, was the wrong inference, looked at in the light of all the circumstances now known.
To approach the problem in this way is not to undermine attempts at reconciliation. There is the period of 12 months referred to in rule 65 of the Matrimonial Causes Rules 1977 to which I have already referred and the periods of time outlined in section 2 of the Act of 1973 are within that span, thereafter the court has a discretion. It is perhaps surprising that the substantive law does not direct that a decree nisi shall lapse after a given period - possibly two years. This might help to cement any reconciliation which had taken place within that period and to encourage finality where the condition of the marriage was in reality hopeless."
"is the evaluative exercise carried out upon granting a decree nisi which led to the conclusion that it was unreasonable to expect the applicant to live with the respondent still valid in light of subsequent events? I have adopted the test as phrased in Savage, but the test applies to both elements of the decree nisi, namely the decision that the wife could not reasonably be expected to live with the husband and that the marriage has irretrievably broken down" (My emphasis)
Reasons For Delay
a) The delay has been to allow the parties to resolve their finances.
b) Due to ill health
c) As a result of some other family matter (a child or other family member has been unwell) and a party or parties have concentrated on that
The Applicant's Submissions
a. Allowed the mere application as sufficient grounds for divorce;
b. Removed the need to prove the ground was made out;
c. Prevented the defence of the application save for reasons of invalidity or lack of jurisdiction; and,
d. Obliged the court to make the conditional order final, if the application to do so was made within 12, save for limited exceptions;
Discussion and Conclusion