W v H
| Jurisdiction | England & Wales |
| Judgment Date | 2013 |
| Year | 2013 |
| Date | 2013 |
| Court | Family Division |
Divorce – Decree absolute – Application for leave to apply for decree to be made absolute – Decree nisi on grounds of husband’s adultery – Resumption of cohabitation – Wife petitioning for divorce in England – Decree nisi being granted unopposed – Parties reconciling and cohabiting in Singapore for over four years – Parties again separating and declaring marriage over – Wife applying for decree nisi to be made absolute – Husband contending reconciliation requiring decree nisi to be rescinded and petition dismissed – Wife applying for leave to issue supplemental petition and/or second petition – Whether absolute bar on granting decree absolute following cohabitation post decree nisi – Whether, if no absolute bar, court to exercise discretion to grant decree absolute – Whether decree nisi should be rescinded – Whether wife should be granted permission to file supplemental petition or second petition – Whether original petition should be dismissed – Family Proceedings Rules 1991, SI 1991/1247 – Family Procedure Rules 2010, SI 2010/2955 – Matrimonial Causes Act 1973, ss 1,2.
The wife was of South Korean origin but had United States nationality. The husband was born in England and had British nationality. In 2003 the parties married in South Korea. They lived and were habitually resident in England during their marriage. In 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. A decree nisi was granted unopposed on the basis of the husband’s adultery. The parties reconciled and resumed cohabitation. In 2008 the husband moved to live in Singapore and the wife joined him shortly afterwards. They sold their home in England and did not return to live there. After mid 2010 the parties finally sought to separate. It was unclear precisely when final separation took place as the wife took up a job in Hong Kong in August 2010 on a six months’ contract and the parties spent little time together from then on. The wife’s case was that the husband continued to commit adultery after reconciliation and that she was aware of it since 2008. Further she alleged that the husband abusively told her to get out of the house in December 2010. The husband’s case was that the wife finally told him that she did not wish to remain married to him in late 2010 or early 2011. Even though they were not physically under the same roof after August 2010, their post decree nisi cohabitation and reconciliation was to be regarded as having continued uninterruptedly for over four years. The wife had no plans to return to England and the husband continued to live in Singapore and claimed to be domiciled there. Section 2(1) of the
Matrimonial Causes Act 1973, so far as material provided: ‘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.’ Section 1(2) provided, so far as material: ‘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 …’. The parties agreed that the marriage had subsequently broken down irretrievably and each wished to be divorced. In February 2011 the wife served on the husband an application for the decree nisi to be made absolute together with an affidavit purporting to explain the delay of more than one year since decree nisi as required by r 2.49 of the Family Proceedings Rules 1991, SI 1991/1247 (then in force) (the 1991 Rules). The husband’s solicitors 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. The wife issued several formal applications seeking, inter alia, rescission of the decree nisi, revival of the earlier divorce petition and/or leave to file a second divorce petition. On the same day the husband’s solicitors stated that the husband had issued divorce proceedings in Singapore based on the wife’s alleged behaviour. The matter was transferred to the High Court and the proceedings in Singapore were stayed pending the outcome of the hearing. The husband submitted, inter alia, relying on the case of Biggs v Biggs and Wheatley [1977] 1 All ER 20, that there was an absolute bar on granting a decree absolute because of the terms of s 2(1) of the 1973 Act and in such circumstances the court did not have a discretion to grant a decree absolute. The question of whether the petition should be dismissed or revived was bound up with the question of whether the wife should be allowed to supplement her original petition. The Family Procedure Rules 2010, SI 2010/2955 came into force on 6 April 2010, superseding, save as provided by the transitional provisions contained in PD 36A 3.1, the 1991 Rules. The 2010 Rules did not provide for the filing of a supplemental petition.
Held – (1) The decision of Biggs had to be regarded as strongly persuasive. It 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. 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. If such a view was wrong and the court had a true discretion unfettered by s 2(1) of the 1973
Act, the court would need to have regard to the reasons for the delay and whether the parties had lived with each other as husband and wife since the decree nisi. The rationale for the statutory provisions in s 2 of the 1973 Act was that the cohabitation undermined the basis for the petition/decree because it fundamentally undermined the assertion that the marriage had not broken down irretrievably. Further, in the case of adultery, it demonstrated that the petitioner had not found it subjectively intolerable to live with the respondent and in the case of behaviour, it demonstrated that objectively the condition that the petitioner could not reasonably be expected to live with the respondent had not been fulfilled. Those matters were crucial because they undermined the basis for the granting of the decree nisi. Where there had been a delay of 12 months, there was plainly a duty to enquire into the facts, including cohabitation. The reason for delay was specifically required to be considered. In considering the statutory framework it was not the task of the judge to assess the quality of the cohabitation, nevertheless, delay was in itself relevant whether or not accompanied by cohabitation. The fact of cohabitation was of central importance in exercising the discretion. The court should not disregard the cohabitation, or make the decree absolute simply on the basis that the marriage had subsequently broken down irretrievably. The period of cohabitation in the instant case had been years and not months. The parties had resumed their married life in the fullest sense very shortly after the decree; they seemed to have treated the decree as an irrelevance. They moved countries in reliance on their reconciliation. The wife’s case that she remained reconciled with her husband despite being aware of his adultery since 2008 weakened her case. The application for leave for the decree nisi to be made absolute would therefore be refused (see [61], [64]–[65], [67]–[68], below); Savage v Savage [1982] Fam 100 and Biggs v Biggs and Wheatley [1977] 1 All ER 20 considered.
(2) If the court did not rescind the decree nisi it would remain extant. Public policy considerations applied to perpetuating a decree nisi which could not be made absolute; to do so would be wrong in principle. The court, however, could not consider the question of rescission without forming a view as to whether the wife could or should be permitted to revive her original petition. The 2010 Rules did not provide for the filing of a supplemental petition. That was a deliberate omission effecting a substantial and important change in procedure. On the facts of the instant case the 2010 Rules applied and on that basis there was no power to permit the wife to supplement the petition. It followed that the decree nisi had to be rescinded with the petition being dismissed. In any event if there had been no absolute bar on filing a supplemental petition, then: (a) the antiquity of the petition, followed by over four years’ cohabitation; (b) the parties’ lack of jurisdictional and actual connection with the jurisdiction (subject to the husband’s domicile); (c) the fact the application had been made before the implementation of the 2010 rules and that the 2010 rules were in force and had to be taken into account; and (d) the fact that to supplement her
petition was artificial, were all factors that supported a refusal to grant leave to do so. The fact that the wife had originally invoked the jurisdiction of the English court and that the parties had remained parties to those proceedings, albeit without final resolution, had not provided a sufficient justification for her continuing to invoke it. Accordingly the decree nisi would be rescinded and the petition dismissed (see [77]–[79], [83], [85], [88], [102], [104], [105], below).
Cases referred to in judgmentScharrer v Scharrer (1909) Times, 6 July, CA.
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