W v H

Cohabitation after decree nisi may invalidate the basis on which a divorce decree was granted. In an adultery case, cohabitation for more than six months after knowledge of the adultery creates an absolute bar to making the decree absolute under Matrimonial Causes Act 1973, section 2(1). The bar applies during the subsistence of the marriage, including after decree nisi. Alternatively, where the court has a discretion, the length of cohabitation and delay are central considerations; a later breakdown does not by itself revive the decree. The court has an inherent power to rescind a decree nisi which cannot properly be made absolute and may dismiss a stale petition. Transitional rules may prevent a supplemental petition being filed after rescission.

The wife obtained an unopposed decree nisi in 2006 on the husband’s adultery. The parties then reconciled and cohabited for more than four years before separating again. The wife applied for the decree to be made absolute, alternatively for rescission of the decree nisi, permission to file a supplemental or second petition, or dismissal of the petition. The husband opposed the decree absolute and had begun divorce proceedings in Singapore, which were stayed pending determination of the English applications.

The central issues were whether section 2(1) of the Matrimonial Causes Act 1973 imposed an absolute bar, whether the decree should be rescinded, and whether the wife could revive the stale proceedings by supplemental petition.

1. The application for decree absolute was refused. The marriage subsisted in law until decree absolute. Following Biggs v Biggs and Wheatley, the primary basis was that cohabitation exceeding six months after knowledge of adultery created an absolute bar to relying on that adultery throughout the subsistence of the marriage. The fact that the cohabitation occurred after decree nisi did not alter the analysis.

2. The statutory distinction between adultery and behaviour did not affect the post-decree analysis. Cohabitation undermined the foundation of the decree because it demonstrated that the marriage had not irretrievably broken down when the decree nisi was pronounced. The quality of the cohabitation was not for the court to assess.

3. Alternatively, if the court retained a discretion, delay and cohabitation were crucial. A reconciliation lasting four years was not materially different in principle from one lasting twenty years. The fact that the marriage had broken down again by the hearing did not compel the court to make the decree absolute.

4. The court had an inherent residual jurisdiction to rescind a decree nisi, despite there being no express statutory or rules-based power. It would be contrary to public policy to leave extant a decree nisi which could never properly be made absolute, thereby creating a possible limping divorce. Consent was not essential in these circumstances.

5. The 2010 Rules applied to the procedural step required after rescission. Rule 7.13 provided for amendment but not a supplemental petition. The court therefore had no power to permit the wife to supplement the petition. In any event, the petition was stale, the parties had lost their practical connection with England, and issuing a fresh petition would have been the artificial consequence of the proposed course.

6. The decree nisi was rescinded and the petition dismissed.

First-instance decision in the High Court (Family Division). No appellate history was stated.