In January I wrote here about an unusual case in which a wife had unsuccessfully applied to set aside her own Decree Nisi of divorce. The case has now been before the Court of Appeal who have overturned the first instance judge’s decision.
At first instance
The parties had an 11-year relationship and then married. Two days before the wedding ceremony in 2012 they signed a pre-nuptial agreement (“PNA”). The marriage ended a little over a year later and the wife applied for a divorce. In June 2014 an order was made reflecting the terms agreed in the PNA. The terms of the order were expressed to become effective on the grant of Decree Absolute.
Decree Nisi was pronounced in November 2013 but was never made Absolute. The parties disagreed on what happened next. The wife’s position was that they resumed a relationship akin to the marriage and therefore the Decree Nisi which stated that the marriage had irretrievably broken down was incorrect. On the other hand, the husband argued that there was no marital reconciliation but a repeat of the toxic relationship that had led the court to conclude that the marriage had broken down.
The wife applied to rescind the Decree Nisi to enable her to file a fresh petition. The reason was straightforward. The PNA provided for an increasing amount of money to be paid depending on how long the marriage endured. If the marriage was over when the order was made in 2014, she would receive significantly less under the terms of the PNA than if she could say the relationship had endured.
The first instance judge found that this had been a highly defective marriage and that the grant of Decree Nisi in 2013 was correct.
What happened next?
The wife appealed the decision on four grounds:-
- The judge had applied the wrong test by requiring the wife to prove there had been a marital reconciliation on his own assessment;
- In applying the wrong test he failed to assess the subjective impact of the husband’s behaviour on the wife;
- As a consequence the judge’s assessment that the marriage had irretrievably broken down was wrong; and
- The judge’s decision was contrary to public policy.
The case is reported as Olga Cazalet v Walid Abu-Zalaf [2023] EWCA Civ 1065 and the Court of Appeal found in favour of the wife’s presentation on grounds 1 and 3. The question of reconciliation is not for a qualitative assessment by the judge but to be assessed on objective findings of fact. It was not for the judge to apply his personal view on the essential components of a marriage and he had failed to attach proper significance to to the evidence on the features that supported a reconciliation. The Court of Appeal emphasised that the correct test is simply whether the exercise undertaken when making the Decree Nisi was still valid in the light of subsequent events. Of significant importance to this exercise was the adoption of a child after 2014 who was treated by both husband and wife as a child of the family.
Other significant pieces of evidence that the trial judge had not given sufficient weight to were the fact that in the years after Decree Nisi was granted the parties had resumed a sexual relationship, been on holiday together and had attended many social functions where they presented themselves as husband and wife. It was also highly relevant that they had in fact entered into negotiations for a post-nuptial agreement although that agreement was not concluded. The terms of the financial order reflecting the PNA had not been implemented and the husband had continued to support the wife and the children at a significantly higher level than the order provided for.
It had been open to either party to apply to the Court at any point since 2014 for the Decree Nisi to be made Absolute and it was highly relevant that neither of them had done so. The wife was criticised for having failed to apply to rescind the Decree Nisi during the period of reconciliation but this was unfair; it had been open to either party to rectify the position during the 8-year period following the grant of Decree Nisi. The parties had reconciled and that fact meant that the basis on which the original orders had been made had been fundamentally undermined.
The Court of Appeal was also interested in the trial Judge’s assessment of the parties’ credibility. Despite finding the wife to be “by far the better witness” and the husband to be “combative, evasive, rhetorical, strident and in some respects obviously untruthful” he went on to disregard his assessment and find against the wife. The Court of Appeal found that the assessment “should have fed into the judge’s determination.”
As a consequence, the Decree Nisi was rescinded and the petition dismissed. This leaves it open to the parties to commence fresh proceedings for divorce. The Court of Appeal’s judgment can be read here
