King, Moylan and Peter Jackson LJJ. An appeal brought against the decision of Mostyn J – summarised by Henry Pritchard – concerning the approach the court should take when faced with an application to rescind a decree nisi. Appeal allowed.

The appellant wife (‘W’) (49) and the respondent husband (‘H’) (65) started their relationship in 2001 and married in 2012. They entered into a pre-nuptial agreement which provided for W to receive increasing levels of financial provision upon divorce depending on the length of the marriage.

The parties separated in August 2013. W filed her petition (unreasonable behaviour) in September 2013. Decree nisi was pronounced in December 2013. Neither party applied for decree absolute.

W argued that the parties reconciled and the marriage lasted until March 2020. H denied that there had ever been a reconciliation.

Grounds of appeal

1. The judge applied the wrong test, requiring W to prove that there had been a martial reconciliation on his own qualitative assessment.
2. In applying the wrong test, he failed to assess the subjective effect of H’s behaviour on W as required by Owens v Owens [2018] UKSC 41.
3. As a result, the judge’s evaluative assessment that W could not reasonably have been expected to live with H and that the marriage had irretrievably broken down was wrong.
4. The judge’s decision was contrary to public policy (including, inter alia, that it was based on a judicial standard of a good or bad marriage).

Law

An applicant can apply to set aside a decree nisi pursuant to either s 31F(6) of the Matrimonial and Family Proceedings Act 1984 (‘the 1984 Act’) or s 9(2) of the Matrimonial Causes Act 1973 (‘the 1973 Act’). Mostyn J and King LJ agreed that there should be no difference between the court’s application under either avenue.

The exercise of this discretion was also considered by Cobb J in NP v TP (Divorce) [2022] EWFC 78, in which he set out the principles the court will apply in determining whether to exercise its powers to rescind, one of which was by reference to the ‘traditional grounds’ such as ‘a new event or material change of circumstances which invalidates the basis, or fundamental assumption, upon which the order was made’. It was Cobb J’s decision in NP v TP with which Mostyn J disagreed, but which King LJ preferred.

In reliance on the case of Owen v Owen [1964] P 277, Mostyn J concluded that to rescind a decree nisi: (1) the findings on which the decree nisi was based must be wrong, and (2) ‘the decree of error [must be] such that to allow the decree nisi 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 is justified’. It was the importation of this second limb that both King and Moylan LJJ disagreed. King LJ preferred Cobb J’s ‘modern analysis’ in NP v TP, woven into which was the important public policy imperative of finality of litigation.

King LJ held the correct test to be this:

“Is the evaluative exercise carried out upon the granting of decree nisi which led to the conclusion that it was unreasonable to expect the applicant to live with the respondent still valid in the light of subsequent events?’

King LJ also took issue with Mostyn J’s findings of fact, ultimately setting them aside. In his decision at first instance, and more recently in the matter of Baker v Baker [2023] EWFC 136 – summarised by Sarah Hogarth – Mostyn J made plain his view of the value to be derived from a witness’s demeanour. In both Cazalet and Baker, despite the husbands in both cases giving objectively terrible evidence, Mostyn J largely disregarded their presentation. However, in this appeal, King LJ concluded that:

‘[Mostyn J’s] assessment of the parties’ credit was an important feature which should have fed into [his] determination, alongside objective findings of fact, of whether the parties had reconciled following the making of the decree nisi.’

Outcome

King LJ swiftly dismissed Grounds 2 and 4, but allowed the appeal on Grounds 1 and 3 concluding that:

1. The judge set out the wrong test by importing the second ‘contrary to justice’ limb;
2. The question of reconciliation is not to be determined by reference to the judge’s own qualitative assessment of the relationship but by reference to objective findings of fact; and
3. The judge’s evaluation that the marriage had irretrievably broken down was wrong in that he:
1. Introduced his personal view as to the essential components of a marriage;
2. Disregarded his own findings as to the credibility of the witnesses; and
3. Failed to attach proper significance to the various features supportive of a finding that there had been a reconciliation;
4. ‘a proper analysis of the circumstances of this case should have led to the conclusion that there had been a reconciliation between 2014–2020.’

The appeal is allowed, decree nisi rescinded and the petition dismissed.

In his judgment, Moylan LJ emphasised the public interest in one’s (marital) status, but observed that the nature of the public interest in the divorce process ‘no longer reflects the concerns expressed by Scarman J in Owen’ (the 1964 case on which Mostyn J relied heavily).