Decree nisi - Rescission - Court granting unopposed decree nisi on wife’s petition based on husband’s adultery
Kim v Morris: Fam Div (Mrs Justice Parker DBE): 2 May 2012
The Matrimonial Causes Act 1973, so far as material, provides: ‘1(2) The court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more of the following facts, that is to say: (a) that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent… 2(1) One party to a marriage shall not be entitled to rely for the purposes of section 1(2)(a) above on adultery committed by the other if, after it became known to him that the other had committed that adultery, the parties have lived with each other for a period exceeding, or periods together exceeding, six months.’
The parties married in South Korea in 2003. The wife had US nationality and the husband was British. In January 2006, the wife issued a petition for divorce out of the Principal Registry of the Family Division relying on the parties’ habitual residence in England. In April, decree nisi was granted unopposed on the basis of the husband’s adultery. By July, the parties had reconciled and resumed cohabitation.
Their post-decree nisi cohabitation and reconciliation continued uninterruptedly for a period exceeding four years before their final separation. In February 2011, the wife served on the husband an application for the decree to be made absolute together with an affidavit purporting to explain the delay of more than one year since decree nisi as required by rule 2.49 of the Family Proceedings Rules 1991, then in force. In response, the husband contended that the parties’ reconciliation post-decree nisi required the decree to be rescinded and that the wife’s petition and consequential claims including for financial ancillary relief should be dismissed. In March, the wife made further applications seeking: (i) rescission of the decree nisi; (ii) leave to file a supplemental petition; and (iii) leave to file a second petition.
The issues which fell to be determined were: (i) whether there was an absolute bar on granting a decree absolute because of the terms of section 2(1) of the Matrimonial Causes Act 1973; (ii) whether the decree nisi should be rescinded; and (iii) if so, whether the wife should be granted permission to file a supplemental or a second petition, or whether the original petition ought to be dismissed. In respect of issue (i), consideration was given to Biggs v Biggs and Wheatley  1 All ER 20.
The wife gave evidence that from spring 2010 it had become obvious that the husband was again conducting affairs with several women, that those affairs had been ongoing throughout the attempted reconciliation, and that they were continuing. Consideration was also given to the Family Procedure Rules 2010, SI 2010/2955 and Practice Direction 36A (PD36A).
The court ruled: (1) The decision in Biggs v Biggs had two alternative bases. The first and primary basis was that there was an absolute bar on making the decree absolute if there had been in excess of six months’ cohabitation, after knowledge of adultery, which remained in effect during the whole of the subsistence of the marriage.
The second and alternative consideration was discretion. The approach could also be expressed on a slightly different basis, namely that since the fact of cohabitation in excess of six months after knowledge of adultery demonstrated that the basis upon which the decree nisi was pronounced had been invalidated then the fact of such cohabitation gave the court no discretion (see ,  of the judgment). In the instant case, the court had no discretion and would decline to give leave for the decree nisi to be made absolute (see  of the judgment).
(2) Public policy considerations applied when the court was asked to perpetuate a decree nisi which could not be made absolute. To do so would be wrong in principle (see  of the judgment). In the instant case, if the court did not rescind the decree nisi it would remain extant. However, the court could not consider the question of rescission without forming a view as to whether the wife could or should be permitted to revive her 2006 petition. Further, the question of whether the petition should be dismissed was intimately bound up with the question of whether the wife should supplement her petition. There was no utility in a petition upon which she could not proceed (see , ,  of the judgment).
(3) The 2010 rules did not provide for the filing of a supplemental petition, rule 7.13 provided for amendment only. That was a deliberate omission and effected a substantial and important change in procedure. By PD36A 3.1, where an initiating step had been taken in a case before 6 April 2011, in particular a step using forms or other documentation required by the previous rules, the case would proceed in the first instance under the 1991 rules (see ,  of the judgment).
In the instant case, the wife was entitled to rely on adultery, so long as it was not succeeded by six months’ cohabitation after it came to her knowledge. However, if the wife wished to rely on events post-cohabitation, she had to file a supplemental petition. The 2010 rules were of crucial importance. The wife’s application for the decree to be made absolute had been an ‘initiating step’ in existing proceedings, but it had not been an effective initiating step because she had already obtained a decree nisi.
Although ‘normally’ it would not be necessary to take a ‘step’ again, in the instant case the ‘step’ could not be taken until decree nisi had been rescinded. Therefore, the 2010 rules applied and the wife could not be permitted to supplement her petition. If the wife was not to proceed on a supplemental petition, then it followed that the decree had to be rescinded and the petition dismissed (see , , , ,  of the judgment). The decree nisi would be rescinded. The petition would be dismissed (see  of the judgment).
Robert Peel QC (instructed by Bross Bennett) for the wife; Timothy Amos QC and Duncan Brooks (instructed by Farrer & Co) for the husband.