Can mutual loathing amount to a reconciliation? Cazalet v Abu-Zalaf [2022] EWFC 119

Introduction

Mr Justice Mostyn (“the judge”) dismissed the wife’s (“W”) application to rescind the decree nisi granted to her and granted the husband’s (“H”) application for the decree to be made absolute.

Background

W applied to rescind the decree nisi and consequentially to dismiss the divorce petition and to set aside the final financial order. H made a cross-application for the decree nisi to be made absolute.

The parties began their relationship in 2001 and married in 2012 after entering into a prenuptial agreement two days prior to the ceremony. They separated in 2013 and W filed a divorce petition the same year on the ground that H had behaved in such a way that she could not reasonably be expected to live with him, and that the marriage had irretrievably broken down. The cause was not defended. Decree nisi was pronounced in 2013.

At the same time, W issued financial proceedings and H issued a notice for W to show cause why the terms of the prenuptial agreement should not be upheld. W’s application for maintenance pending suit was also heard by Mostyn J in 2013 [2013] EWHC 4250 (Fam). In 2014, the final financial order was made on the basis of their prenuptial agreement.

Why had parties returned to court some 9 years later?

Neither party had sought either to rescind the decree nisi nor to make it absolute for a considerable amount of time. W contended that a reconciliation had taken place in or around late 2014, lasting until early 2020. Her application was made with the intention of filing a fresh divorce petition. The prenuptial agreement provided for increasing levels of financial provision to be made to W depending on the length of the marriage. The judge therefore considered the W’s intention to be purely based on money, rather than a proclamation of true facts: “It is not about correcting a false finding as to her status. It is not about correcting a public injustice.” [12].

The issue

Did the marriage with the quality and attributes it had before it broke down in 2013 subsequently revive or did it remain irretrievably broken down as the court found when it pronounced decree nisi in 2013? In other words, had the parties truly reconciled?

The law

The judge set out three procedural routes to seek a rescission of a decree nisi:

1. A party applies to set aside a decree and is granted a rehearing of the cause
2. Either party may apply to rescind the decree by consent where parties have reconciled
3. A respondent applies to make a decree nisi absolute, the petitioner having failed to do so. The court is here empowered to rescind the decree if it refuses the application.

The judge left no stone unturned in considering the extensive jurisprudence on the court’s power to rescind a decree nisi. He found Owen v Owen [1964] P 277 to be the most illuminating authority, particularly the test expressed by Scarman J at [284] that “the court must be satisfied that there are substantial grounds for the belief that a decree has been obtained contrary to the justice of the case before it takes the serious step of setting aside an order of the court obtained by due process of law.”

The judge made clear that there should be no substantive difference between the test under route A and route C. Under each route, the court must be satisfied that [43] “the degree of error is 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 is justified.”

Had the parties reconciled?

Having set out the stringent legal test to apply, the judge turned to the facts. Both parties accepted that their marital relationship was unhealthy and damaging. However, W’s case was that there was a significant improvement in that there was no physical violence. H’s case was that there was no reconciliation but a repetition of their toxic relationship. The judge concluded that it would be “an abuse of language” to describe their resumed relationship as a marital reconciliation; that the evidence in this case came “nowhere near to demonstrating that the findings made on the making of the decree nisi were wrong, let along so wrong that to allow the decree to stand would be demonstrably unjust.” [59]

The judge found that just as no one forms a marriage based on appalling mutual loathing, it is hard to conceive that parties would reconcile on that basis, particularly following a decree nisi.

Warnings

The judge also gave two important warnings in his judgment.

The first was against the perils of placing emphasis on witness demeanour. In this case, H gave poor evidence and was “evasive,” whilst W was “by far the better witness.” However, the judge gave an important reminder that witness demeanour is unlikely to be a reliable aid in determining the truth, referencing Lord Leggatt’s speech given at the At A Glance Conference 2022.

The second warning was given to advocates to consider very carefully “on an objective analysis” whether there are material omissions from the judgment when applying to the judge for amplification of the judgment under FPR PD 30 para 4.6.

Afterthoughts

This was a novel case, the first before the judge where the petitioner was seeking to set aside a decree made in her favour, also novel in the sense that H’s case was that his behaviour was just as bad before and after the decree. It importantly emphasises the gravity of setting aside an order of the court obtained by due process of the law.