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10 January 2023

Wife applies to set aside her own decree nisi

In this unusual but interesting case, the wife applied to set aside the decree nisi of divorce which had been made on her application.

In Cazalet v Walid Abu-Zalaf [2022] EWFC 119 [1], after an eleven year relationship, the parties signed a pre-nuptial agreement (“PNA”) two days before they were married in 2012.  A little more than a year later, in September 2013 the marriage foundered and the wife applied for divorce.  The husband issued a show cause application, essentially challenging the wife to state why a financial order should not be made in the terms set out in the PNA.  An order was made reflecting the terms of the PNA in June 2014.  In the usual way, the order would be effective upon decree absolute.

Decree Nisi was pronounced in November 2013.  However, the decree nisi was never made absolute and the parties subsequently resumed a relationship, the precise nature of which was a matter of dispute between them.  On the wife’s case, they resumed a relationship akin to their marriage.  The wife therefore argued that the decree nisi which certified that the marriage had irretrievably broken down in 2013 was incorrect. On the other hand the husband argued that the rekindled relationship was not a marital reconciliation but simply repeating the toxic patterns of behaviour that had led to the decree nisi being granted and the court had been correct to find that the marriage had broken down.  In 2020, the wife applied to rescind the decree nisi made in 2014.  She wanted to file a fresh petition stating that at the present time, in 2020, the marriage had now irretrievably broken down.  In January 2022 the husband applied to make the  2013 decree nisi absolute.

There was a straightforward reason behind the wife’s desire to rescind the 2014 decree nisi – the PNA provided for her to receive an increasing amount of money the longer the marriage lasted.  The original order was based on the marriage having lasted for 2 years, but by this point, the calculation would have been based on the marriage having lasted for eight years.  The financial difference to the wife would have been substantial.  As Mr Justice Mostyn said: “It is about money, and only about money.”

Mostyn J provides a useful exposition of the circumstances in which a decree nisi can be rescinded.  There are three procedural routes:-

  1. A party can apply to set aside a decree and have a rehearing of the case. Invariably until the instant case these applications had been brought by the respondent;
  2. If the parties reconcile they can apply by consent to rescind the decree nisi; and
  3. The respondent can apply to make decree nisi absolute if the petitioner has failed to make an application. The court in these circumstances if it decides not to grant decree absolute has the  power to rescind the decree nisi.

However, in this case he found that this had always been a “highly defective marriage“.  The Court had been right to grant decree nisi in 2014 and it would be “an abuse of language” to describe their resumed relationship as a marital reconciliation.  They did not derive comfort from one another or solace or satisfaction from the relationship.

The outcome of this case was that the wife’s applications were dismissed and the husband’s granted.  The decree absolute would be made forthwith and the financial remedies order made back in 2014 would finally be able to take effect.  The consequence for the wife would be that she would receive a payment based on a marriage of 2 years rather than one lasting eight years. Mr Justice Mostyn said, “The evidence shows that the parties had a highly defective marriage which was rightly put out of its misery by the making of decree nisi.”  Had the marriage truly been resurrected, it would of course, have been open to the wife to have applied to rescind the decree nisi by consent based on their reconciliation.  However, that step had never been taken and the decree nisi had hovered over them throughout the intervening years.  As Mr Justice Mostyn said, “The fact that the wife made no such application speaks volumes.”

This case emphasises the need to ensure that all the formalities surrounding divorce are complied with at the appropriate time to avoid the possibility of one party seeking to reopen the matter further down the line.

[1] Note that this case was heard before the implementation of the Divorce, Dissolution and Separation Act 2020 and therefore refers to decree nisi and decree absolute rather than to a conditional and final order.

If you require any family advice please do not hesitate to contact Kelly Gerrard of the Family Department.

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Kelly Gerrard
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