Olga Cazalet v Walid Abu-Zalaf

Where a decree nisi was obtained on the basis of behaviour and irretrievable breakdown, the same structured approach governs an application to rescind it under section 31F(6) of the Matrimonial and Family Proceedings Act 1984 and an application to make it absolute under section 9(2) of the Matrimonial Causes Act 1973. The question, drawn from Savage, is whether the evaluative exercise at decree nisi remains valid in light of subsequent events.

No additional requirement of special circumstances, demonstrable injustice, or a result contrary to justice applies. A court must decide reconciliation from the objective facts and all the evidence. It must not assess whether the marriage met a judge’s personal standard of quality or whether the relationship became materially better.

The wife obtained an undefended decree nisi in November 2013 on the basis of the husband’s behaviour. Financial claims were resolved in 2014 under a prenuptial agreement. Neither party sought decree absolute for eight years.

The wife maintained that the parties reconciled from about November 2014 until March 2020. She applied to rescind the decree nisi and dismiss the petition. The husband cross-applied for decree absolute. Mr Justice Mostyn dismissed the wife’s application and made the decree absolute.

The wife appealed, challenging both the test applied and the finding that there had been no reconciliation. The central issue was whether subsequent events had invalidated the conclusions underpinning the decree nisi.

1. Appeal allowed. The decree nisi was rescinded and the divorce petition dismissed. King LJ gave the leading judgment. Moylan LJ agreed in a concurring judgment, and Peter Jackson LJ agreed with both judgments.

2. For both a rescission application under section 31F(6) of the Matrimonial and Family Proceedings Act 1984 and a respondent’s application under section 9(2) of the Matrimonial Causes Act 1973, the court applies the Savage question: whether the evaluation leading to decree nisi remains valid in light of subsequent events. That inquiry covers both whether continued cohabitation could reasonably be expected and whether the marriage had irretrievably broken down.

3. The judge had wrongly imported a further requirement that the error must make it demonstrably unjust, or contrary to justice, to permit the decree to stand. Owen v Owen concerned a materially different situation, where a spouse who had chosen not to defend a divorce sought a rehearing. The principles approved in NP v TP accommodated finality of litigation without adding that higher threshold.

4. Reconciliation is not determined by a qualitative examination of whether the parties’ relationship was healthy, loving, or materially better than before. The court must make objective factual findings about the relationship and consider all the evidence, including relevant credibility findings. A judge cannot disregard sworn evidence through an over-generalised reliance on the fallibility of memory.

5. On the facts, the parties had reconciled from November 2014 to March 2020. They resumed their established mode of life, presented as husband and wife, had a sexual relationship and holidays, raised a child adopted after decree nisi as a child of the family, and negotiated a postnuptial agreement. The lengthy reconciliation meant that the conclusions underlying the 2013 decree nisi were no longer valid.

• Court of Appeal (Civil Division) — allowed the wife’s appeal, rescinded the decree nisi and dismissed the petition: [2023] EWCA Civ 1065.
• High Court of Justice, Family Division — Mr Justice Mostyn dismissed the wife’s rescission application and made the decree nisi absolute. No citation for that decision is stated in the judgment.