HHJ Simmonds, National Lead Judge for Divorce. Guidance on when a delay between conditional order being made, and application for a final order, is delay sufficient to cause the court to question whether a final order should be made.

In summary:

• a delay caused by a period of reconciliation under two years should not be a bar on the court allowing a final order to be made; [32];
• beyond two years’ delay will require careful consideration; [27].

Facts; [3]–[9]

After a marriage of 11 years, the parties had separated in 2022. The applicant issued a sole divorce application on 12 May 2022, later applying for a conditional order on 30 September 2022. The conditional order was granted 27 October 2022. The applicant would have been entitled to apply for a final order from 9 December 2022; the respondent could have applied on notice three months after this.

The parties reconciled in March 2023, but separated again some 15 months later in June 2024. In August 2024, the applicant applied for the conditional order to be made final.

Law; [10]–[20]

HHJ Simmonds considered the position under the DDSA and other relevant legislation, having regard to the old position and precedent. Under the relevant legislation:

• 20 weeks after filing an application for divorce, the applicant may apply for a conditional order (DDSA 2020 s 1(5), FPR 7.9(1));
• 6 weeks after obtaining a conditional order, a final order can be applied for (DDSA 2020, s 1(4)(b)) (a respondent can then apply three months after this, albeit with notice (MCA 1973, s 9(2));
• if over 12 months pass between the granting of a conditional order and the application for a final order, the applicant must explain the reason for the delay (FPR 7.19(5)).

Only if the court is satisfied that the explanation for the delay is reasonable will a final order be made. The old law for granting decree absolute after delay from decree nisi was more prescriptive, giving specific guidance for the exercise of the court’s discretion; [17]. The new procedure requires only an explanation.

HHJ Simmonds found the test in Olga Cazalet v Walid Abu-Zalaf [2023] EWCA Civ 1065 useful – summary here. The test, under the old law, was: ‘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?’ The court therefore looks at whether subsequent events have invalidated the basis on which the conditional order was made.

Application and outcome; [25]–[33]

In this case, the ‘subsequent event’ was the 15-month reconciliation. HHJ Simmonds ultimately decided that a final order should be made in this case. Broadly, there were two reasons for this decision.

First is the general notion that parties should not be dissuaded from reconciliation, where possible. Reconciliation may take some time to ‘cement in’, per Wood J in Savage v Savage [1982] Fam 100. Reconciliation can take some time, and it is unhelpful to have ‘an artificially imposed court timetable’; [32]. Notably, prior to the DDSA, one of the grounds for divorce was two years’ separation (with consent): a period of two years to allow for reconciliation under the new law is reasonable; [28]–[29].

Second, on a practical note, it was clear that if this application for a final order was rejected, one of the parties would merely issue a new application; [32].

Going forward, the core question for the court when faced with applications such as this one is ([27]): ‘for what period should parties be allowed to attempt to reconcile before it invalidates the basis upon which the conditional order was made and that the original statement that the marriage has broken down irretrievably can no longer stand?’ This guidance suggests that a period beyond two years’ delay will require a more careful analysis of the explanation provided for the delay.