HHJ Vincent. Final Hearing of cross-applications to either grant a decree absolute out of time or rescind the decree nisi. Addendum judgment on anonymisation.

HHJ Vincent. Divorce proceedings led to decree Nisi being pronounced on 18 September 2012. Neither party applied for decree absolute. The wife (W) applied to rescind the decree nisi. The husband (H) applied for decree absolute out of time.

W argued that the parties had reconciled since 2012 and separated in 2020; H argued that reconciliation was explored but never reached. The parties had lived in separate properties since April 2013. However, they had at times continued a sexual relationship, holidayed together with their children, had weekends away together, shared Christmases and attended many social outings together.

The applicable law is at [29]–[43]. In summary:

1. For decree absolute to be made out of time, there must be a written explanation stating (i) reason for the delay, (ii) whether the parties had lived together since decree nisi was made and, if so, when, and (ii) whether the parties had a child together since decree nisi.
2. Living together means in the same household and sharing a common life (MCA 1972, s 2(6)). The judge later comments that this is not the same as to whether the parties have reconciled their marriage.
3. The court then has the discretion to grant the decree absolute, rescind the decree nisi or make such order as it thinks fit.
4. In deciding whether to rescind, the court should first look at whether any of the traditional grounds are established. The applicable ground here was whether there had been a new event or material change of circumstances since decree nisi that invalidated the basis or fundamental assumption on which the decree was made.
5. The court should consider the written explanation provided and, if necessary, find as a fact whether the parties have lived together since decree nisi and, if so, when. The court also needs to consider any other relevant circumstances when deciding how to exercise its discretion.

Ultimately, the judge exercised her discretion to rescind the decree nisi because:

1. The judge found that the parties lived together from August 2012–March 2013, during which period decree nisi was pronounced. Additionally, their conduct from 2013–2020 (during which they shared a common life) constituted a material change of circumstances which invalidated the assumption on which the decree was made.
2. H issuing a fresh petition in 2021 supported the view that the parties believed the actions post-2012 had made the original divorce petition redundant.
3. The long delay before H applying for decree absolute and unsatisfactory reasons given for the delay.

W’s alternative application to strike out H’s 2012 divorce petition for want of prosecution was unsuccessful.

Regarding anonymisation, the applicable law is at [219]. The judge specifically referred to the four categories of case in Peel J’s judgment in Tsetkov v Khayrova where judgments would be published without being anonymised, namely:

1. Where there has been litigation misconduct.
2. Where anonymisation would be effectively impossible because of the prominence of one or both of the parties.
3. Where material in the financial remedy proceedings is already in the public domain.
4. Where one or both parties court publicity.

HHJ Vincent found that this case fell into none of those four categories and that naming the parties could potentially disadvantage them, their children, and their witnesses. She therefore held the judgment should be published in a redacted form so that the names of the parties, their children and their witnesses be anonymised as well as other details to prevent inadvertent identification.