Cazalet v Abu-Zalaf
| Jurisdiction | England & Wales |
| Judge | MOSTYN J |
| Judgment Date | 17 October 2022 |
| Court | Family Court |
Divorce – Rescission of decree nisi – Original petition an undefended behaviour petition – Petitioner now seeking rescission on the basis of a subsequent reconciliation but with aim of making a fresh divorce application – Longer marriage would impact on financial claim under prenuptial agreement – Whether a marital reconciliation justifying setting aside court order.
Evidence – Demeanour of witness – Relevance when making findings or exercising discretion.
The husband and wife began their relationship in 2001 and married in Hong Kong in 2012. They entered into a prenuptial agreement two days prior to the wedding, after being given legal advice. Under the agreement, the provision for the wife depended on the length of time that the marriage lasted.
The husband and wife separated in August 2013, at which time they had one child (the wife went on to give birth to their own child and subsequently adopted another child). The wife filed a divorce petition on 12 September 2013, on the basis of the husband’s behaviour. Her petition included serious allegations of physical abuse. The husband did not defend the petition. On 26 September, the wife filed a statement endorsed with a statement of truth, in proof of her petition. On 17 October 2013, the court certified, pursuant to FPR r 7.20(2)(a), that it was satisfied that the wife’s allegations of conduct were true, that as a consequence the wife could not reasonably be expected to live with the husband, and that the marriage had irretrievably broken down. Decree nisi was pronounced on 15 November 2013.
The wife had issued financial proceedings at the same time as the divorce petition. The husband issued an application for notice to show cause to uphold the terms of the prenuptial agreement. On 5 June 2014, the parties’ financial claims against one another were settled in accordance with the terms of the prenuptial agreement. On the basis that the marriage had lasted for two years, the wife was entitled to £2 million housing capital held on trust for her benefit during her lifetime while she remained single, plus spousal maintenance of about £120,000 per annum, with indexation. The settlement was recorded in an order of the same date.
However, neither the wife nor the husband sought to make the decree absolute at this stage and the financial order was never fully implemented. The wife claimed that in fact, in or around November 2014, she and the husband reconciled, holding themselves out to the world as a married couple, and that thereafter the husband treated her adopted son as a child of the family. The husband eventually conceded that the adopted child had indeed been a child of the family. The wife suggested that the reconciliation lasted until March 2020. She accepted that the relationship had remained overwhelmingly unhealthy and damaging during this period, but claimed that there was no physical violence during this period. The husband argued that while a relationship of sorts had been re-established, it had not been a marital reconciliation but a repetition of the toxic, damaging and thoroughly unhealthy relationship that had led to the decree nisi. It was common ground that during this relationship the husband and wife had lived in separate houses, just as they had done before the separation, with the husband continuing to support the wife financially on an ad hoc basis, including giving her gifts greater than his liability under the order. During the relationship, the husband had prepared two draft post-nuptial agreements and sent these to the wife, insisting that she had to sign as a condition of a full reconciliation, but she had refused to do so.
After March 2020, the wife applied to rescind the decree nisi, asking the court to dismiss her 2013 divorce petition and to set aside the final financial order made in 2014. Her intention was to file a fresh divorce application, principally because if she were to be divorced in 2022, the marriage would have lasted for an additional eight years and she would therefore be entitled to an additional £1.7 million for housing (again to be held on trust for her benefit during her lifetime while she remained single) plus a lump sum of £250,000, plus additional spousal maintenance of about £13,500 per annum. The husband’s response was to file an application for the decree nisi to be made absolute; he also sought a costs order.
There were three procedural routes whereby a decree nisi could be set aside. Route A allowed a party to apply to set aside a decree and be granted a rehearing. Route B allowed either party to apply to rescind the decree by consent if a reconciliation had taken place. Under Route C, if a respondent applied to make a decree nisi absolute, the petitioner having failed to do so, the court was empowered, if it refused to grant the application, to rescind the decree.
The wife had spent £244,000 in legal costs on her rescission application and the husband £164,000 (a total of £408,000).
Held, refusing the wife’s application and making the decree absolute forthwith (with the effect that the 2014 financial order took full effect)—
(1) The court believed that this case was the first one in which an application to rescind a decree nisi under Route A had been made by the divorce petitioner. There was (or should be) no substantive difference between the test under Route A and the test under Route C. It would be illogical and irrational if it were otherwise. Route C could not be invoked by a petitioner. Under each route, in a ‘structured’ discretionary exercise, the court would need to be satisfied: (i) that material facts existed at the time of the making of decree nisi which had not been placed before the trial court (Category 1 facts), and/or that subsequent events occurred (Category 2 facts), which furnished the clear conclusion that the findings made, or inferences drawn, by the trial court when making decree nisi had not been justified and were therefore wrong; and (ii) that the degree of error was such that to allow the decree to stand would be so contrary to the justice of the case that the serious step of setting aside an order made by due process of law was justified. Although the exercise was said to be discretionary it was more realistically to be regarded as evaluative. The evaluation of the materiality and weight of the new facts would drive the decision. It would be an error of law if a judge decided a rescission case by reference to factors outside this discipline. In the court’s view when s 31F(6) of the Matrimonial and Family Proceedings Act 1984 (which had come into force with the creation of the Family Court) was invoked to seek to rescind a decree nisi, it stood as the lineal descendant of the Route A power that stretched back unbroken to the Divorce Rules of 1865, and that therefore the old authorities on Route A remained fully applicable, including Owen v Owen [1964] P 277 (see [16], [32], [33], [42], [43], below).
(2) Bearing in mind this court’s decision in NB v MI[2021] EWHC 224 (Fam), the court accepted that a marriage could function without cohabitation or a sexual relationship. A functioning marriage did not require the parties to love one another. It did require, however, that the parties recognised that they enjoyed a particular status and that they were in a formal union of mutual and reciprocal expectations, of which the foremost was sharing each other’s society, comfort and assistance. It was true that some marriages degenerated into a toxic relationship of antipathy, resentment and cruelty. But no one formed a marriage on that basis. And it was hard to conceive, following a decree nisi, that parties would reconcile on that basis (see [44], [45], below).
(3) The wife had been by far the better witness; in contrast, the quality of the husband’s evidence had been poor. However, this case was a good example of the perils of placing emphasis on the demeanour of a witness, or placing too great a reliance on a witness’s irrelevant lies or other low conduct, when finding facts or exercising a discretion. The demeanour of a witness when giving evidence was unlikely to be a reliable aid either to finding facts, or exercising a discretion on uncontested facts. It was not just that a dishonest witness might have a very persuasive demeanour – that was of course, the first trick in a conman’s repertoire. But the opposite side of the coin was equally problematic, in that a truthful witness might unfortunately have a classically dishonest demeanour. Over-reliance on the ‘quality’ of the evidence of a witness, good or bad, could lead to facts being found, or discretion exercised, by reference to influences that were irrelevant (see [46], [47], below).
(4) The court had not before encountered a case where an applicant had sought to impeach an earlier decree made in her favour. The court’s finding on the evidence was that this had always been a highly defective marriage. In 2013 the husband had rightly been found to have behaved in such a way that the wife could not reasonably be expected to live with him. On 17 October 2013 (the date of the certificate, formalised on 15 November 2013 by pronouncement of decree nisi) the court had rightly found that the marriage had irretrievably broken down. The parties had been drawn back together about 12 months after the making of the decree nisi, but it would be an abuse of language to describe their resumed relationship as a marital reconciliation. While they might have referred to each other, and to the world, as husband-and-wife there had been no enjoyment of each other’s society, and no mutual comfort and assistance. They had not derived any solace or satisfaction from their relationship. The husband’s treatment of the wife’s adopted child as a child of the family, with the consequential acceptance of financial liability, was very virtuous, but did not lead the court to conclude that the resumed relationship constituted a functioning marital...
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