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Kim v Morris [2012] EWHC 1103 (Fam)

Dispute as to whether a decree nisi granted in divorce proceedings in 2006 but which had never been made absolute, should be rescinded or alternatively leave should be granted for the decree nisi to be made absolute.

Parker J has to consider whether an unopposed decree nisi of divorce on the wife's petition granted in 2006 ( based on the husband's adultery) followed by over four years of reconciliation and cohabitation should be made absolute and if not whether the decree should be rescinded.  In the event that the decree nisi were to be rescinded then Parker J had to consider whether the wife should have permission to file a supplemental petition or whether the petition should be dismissed.

The wife is of South Korean origin and was born in the USA and has US nationality. She had no enduring links with this jurisdiction at the time of the hearing.  The husband was born in England and lived and worked in this jurisdiction and has British nationality. The parties married in Seoul in 2003. The parties lived and were habitually resident in England during the marriage.  The wife issued a divorce petition in 2006 and relied on the parties' habitual residence in England.  Decree nisi was granted unopposed in April 2006.  By July 2006 the parties had reconciled and resumed cohabitation at their home in Essex.  In 2008, the husband took up a job with a financial institution in Singapore and moved to live there and the wife joined him shortly afterwards. They sold their home in England and had not lived here since.  It remained unclear as to when the final separation took place.  The wife took a job in Hong Kong in August 2010 and the parties spent little time together thereafter.  It was the wife's case that the husband abusively told her to get out of the house in December 2010 and the husband's case that the wife finally told him that she did not wish to remain married to him in late 2010 or early 2011.  The judge found that though the parties were not physically under the same roof after August 2010, their post decree nisi cohabitation and reconciliation was to be regarded as having continued uninterrupted for over 4 years.  The wife's position at the hearing was that she had no plans to return to England.  The husband claimed to live in Singapore and also to be domiciled there.

Parker J had to consider, inter alia, the FPR 1991 and FPR 2010 and give detailed consideration to Biggs v Biggs and Wheatley [1977] before concluding that leave for the decree to be made absolute should be refused, that there was no power for the wife to supplement her petition and therefore that the decree nisi be rescinded and the petition dismissed.

Summary by Richard Tambling, barrister, 1 Garden Court
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Neutral Citation Number: [2012] EWHC 1103 (Fam)
Case No: FD06D00547
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
PRINCIPAL REGISTRY

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 02/05/2012

Before:
THE HONOURABLE MRS JUSTICE PARKER DBE

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Between:

SO YOUN KIM
Applicant

- and -

ANTHONY THOMAS MORRIS
Respondent
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Robert Peel QC (instructed by Bross Bennett LLP) for the Petitioner Wife
Timothy Amos QC and Duncan Brooks (instructed by Farrer and Co) for the Respondent Husband

Hearing dates: 17/18 October 2011

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Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
.............................

Approved Judgment

MRS JUSTICE PARKER:

1. The issues in this case are:-

i) Whether an unopposed decree nisi of divorce on the wife's petition granted in 2006, based on H's adultery, and followed by over four years of reconciliation and cohabitation, should now be made absolute, on W's opposed application;
ii) If it is not, whether the decree should be rescinded;
iii) If the decree nisi is rescinded, whether W should have permission to file a supplemental petition;
iv) Should the petition be dismissed?

2. H now lives in Singapore and W in Hong Kong. H wishes to proceed on the basis of divorce proceedings issued by him in Singapore.

3. If W could establish jurisdiction here then there would be no bar to her presenting a fresh petition. But in that event she would face the argument that the Singapore proceedings were first in time. As was said at the directions hearing before District Judge Robinson in March 2011 "she needs a 2006 number".

4. This case presents a number of problems and has been argued before me in detail and with considerable erudition.

5. Each of the parties sees financial advantage to them as to their jurisdiction of choice. It is submitted to me on behalf of W that there may be some difficulties for her in making an application under Part III of the Matrimonial Family and Proceedings Act 1994 if a decree is pronounced in H's Singapore proceedings or any potential proceedings which W may wish to institute in Hong Kong. I have not heard any argument about this.

6. There are no children of the marriage.

History
7. W is of South Korean origin and was born in the USA, and grew up in South Korea and in the USA. She has US nationality. She has no enduring links with this jurisdiction. H was born in England and has lived and worked here and has British nationality. The parties were married in Seoul on 20 April 2003. The parties lived and were undoubtedly habitually resident in England during their marriage.

8. W issued her petition out of the Principal Registry of the Family Division (PRFD) on 31 January 2006, and relied on the parties' habitual residence in England as the basis of jurisdiction. The decree nisi was granted unopposed on 12 April 2006.

9. The first appointment set for 19 May 2006 (H but not W having issued a Form A, but W having made a claim for all forms of ancillary relief in her petition) was vacated by consent, with H's Form A to stand dismissed if neither party applied to restore the hearing by 1 September 2006. By July 2006 the parties had reconciled and resumed cohabitation at their home in Essex. In 2008 H took up a job with a financial institution in Singapore (he says on 21 February 2008) and moved to live there and W joined him shortly afterwards. They sold their home in England. They have not lived here since.

10. It is unclear precisely when final separation took place as W took up a job in Hong Kong in August 2010 on a six months contract: it seems that the parties spent little time together from August 2010. W's case is that H abusively told her to get out of the house in December 2010. H's case is that W finally told him that she did not wish to remain married to him in late 2010 or early 2011. Even though they were not physically under the same roof after August 2010, it seems to me that their post decree nisi cohabitation and reconciliation is to be regarded as having continued uninterruptedly for something over 4 years.

11. W has no plans to return to England. H continues to live in Singapore and claims now to be domiciled there.

12. The parties agree that the marriage has now broken down irretrievably and each wishes to be divorced. W consulted solicitors in England and her Form A was issued and served on H. W's solicitors invited H to agree to an early exchange of information with a view to negotiating a settlement.

13. On 18 February 2011 W served on H an application for the decree to be made absolute together with an affidavit purporting to explain the delay of more than 1 year since decree nisi as required by Rule 2.49 of the FPR 1991 (then in force). Under those rules there was no requirement for W to serve her application on H but her solicitors considered it prudent to do so. A hearing was set for 16 March 2011.

14. After exchange of some holding letters H's solicitors wrote on 28 February 2011 contending that the parties' reconciliation post decree nisi required the decree to be rescinded and that W's petition and consequential claims including for financial ancillary relief should be dismissed.

15. On 14 March 2011 H's solicitors wrote that H declined to accept a compromise proposed by W whereby the decree should be rescinded by consent on the basis that H agreed that W should be permitted to issue a supplemental and/or second petition in England.

16. Thus on the same day W issued formal applications seeking (i) rescission of the decree nisi (ii) leave to file a supplemental petition (iii) leave to file a second petition.

17. Also on 14 March 2011 H's solicitors stated that H had on that day issued divorce proceedings in Singapore based on W's alleged behaviour, the basis of jurisdiction being his asserted habitual residence in Singapore for three years preceding the presentation of the petition.

18. At the hearing on 16 March, now utilised for directions, DJ Robinson transferred W's applications to the High Court on a two day estimate, and provided for the parties to file statements and gave other case management directions.

19. The Queen's Proctor has declined to intervene although invited to do so by DJ Robinson.

20. The Family Procedure Rules 2010 ('the 2010 Rules') came into force on 6 April 2010, superseding, save as provided by the transitional provisions, the Family Proceedings Rules 1991 ('the 1991 Rules').

21. By agreement the Singapore divorce proceedings have been stayed pending the outcome of this hearing.

22. I have read the transcript of the hearing of 16 March 2011, the parties' statements, and the relevant divorce petitions issued and proposed in this jurisdiction and the writ for divorce issued in Singapore, and the correspondence between solicitors in this jurisdiction.

23. I heard submissions over two days, and have read counsel's written submissions; including additional written submissions prepared overnight between the first and second days, and have been referred to a number of authorities.

24. Costs to date are: W £44,174; H: £85,540.10; the difference being accounted for, I am told, by the fact that W's solicitors are not based in central London whereas H's are.

The parties' evidence 
25. Neither party has adduced any evidence as to what if any discussion took place between them as to the existence of the decree nisi and its perceived effect on their marital status.

26. In her statement W asserts that she reconciled with H because she believed him when he said that he would treat her well and that he would be faithful to her, but that he continued to have affairs throughout their relationship and that the marriage had been a "sham" from the date of the reconciliation until final parting. H strenuously denies this.

27. H pleads in his Singapore proceedings that the marriage has broken down as a result of W's behaviour on the basis that she left him without cause. She denies this.

28. In the light of H's denials I am simply not in a position to proceed on the basis that H continued to commit adultery throughout the period after the reconciliation. I note that W is wholly unspecific as to how and when she discovered this alleged adultery, or her claim that "from Spring 2010 it became obvious that (H) was again conducting affairs with several women, that these affairs had been ongoing throughout the attempted reconciliation, and that these affairs are continuing". I note also that W makes the assertion of the continuing affairs in order to explain and justify her application to make the decree absolute in spite of the delay. In his statement H describes a full reconciliation rather than an attempted reconciliation. It may be that his assertion that he was faithful to W throughout the period of reconciliation is to be read as containing an implied admission that he has not been faithful to her thereafter. But if so this does not go the issue of the explanation for the delay. In any event, for the reasons set out below, I do not think that any of this truly affects the exercise which I have to conduct.

29. After a full discussion between me and counsel as to the lack of information to explain their parties' position further, and the possible implications, and counsel considering this overnight, each declined to call oral evidence, either by way of supplementation of their statements, or cross-examination: they submitted that this was not required.

Issues for determination
30. The parties agree that four issues arise for determination. They are:

a. Is there an absolute ban on granting a decree absolute because of the terms of s 2 (1) MCA 1973;
b. If there is no absolute bar, should the court exercise its discretion (to which I would add, and are the provisions of s 2 (1) relevant to the exercise of the discretion) to grant a decree absolute;
c. If there is an absolute bar, or the discretion is exercised against granting the decree absolute, should the decree nisi be rescinded; and
d. If so, should W be granted permission to file (i) a supplemental petition (ii) a second petition, or should the original petition be dismissed.

The Law 
31. It is necessary to set out the relevant provisions in respect of adultery and unreasonable behaviour allegations to address the arguments presented to me.

32. The MCA 1973 provides:

1 Divorce on breakdown of marriage
(1) Subject to section 3 below, a petition for divorce may be presented to the court by either party to a marriage on the ground that the marriage has broken down irretrievably.

(2) The Court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more of the following facts, that is to say –

(a) that the petitioner has committed adultery and the petitioner finds it intolerable to live with the respondent;
(b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
(c)…
(d)…
(e)…

(3) On a petition for divorce it shall be the duty of the court to enquire, so far as it reasonably can, into the facts alleged by the petitioner and into any facts alleged by the respondent.

(4) …

(5) Every decree of divorce shall in the first instance be a decree nisi and shall not be made absolute before the expiration of (originally six months, now six weeks) from its grant.

2 Supplemental provisions as to facts raising presumption of breakdown
(1) One party to a marriage shall not be entitled to rely for the purposes of section 1 (2) (a) above on adultery committed by the other if, after it became known to him that the other had committed that adultery, the parties have lived with each other for a period exceeding, or periods together exceeding, six months.

(2) Where the parties to a marriage have lived with each other after it became known to one party that the other had committed adultery, but subsection (1) above does not apply, in any proceedings for divorce in which the petitioner relies on that adultery, the fact that the parties have lived with each other after that time shall be disregarded in determining for the purposes of section 1 (2) (a) above whether the petitioner finds it intolerable to live with the respondent.

(3) Where in any proceedings for divorce the petitioner alleges that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with him, but the parties to the marriage have lived with each other for a period or periods after the date of the occurrence of the final incident relied on by the petitioner and held by the court to support his allegation, that fact shall be disregarded in determining for the purpose of section 1 (2) (b) above whether the petitioner cannot reasonably be expected to live with the respondent if the length of that period or of those periods together was six months or less.

33. Either party may apply for the decree to be made absolute: the Petitioner after 6 weeks, the Respondent after 3 months, from decree nisi. Under the FPR 1991 R 2.49 the procedure for making a decree absolute was the lodging of a notice in Form M 8, whereupon the district judge "shall cause" the records to be searched for the purpose of establishing that there is no outstanding application or question affecting the decree nisi or preventing the granting of the decree absolute: for instance challenge to the order by way of rescission or appeal, intervention by the Queen's Proctor or other third party, application for consideration of the Respondent's financial position in divorce proceedings based on section 1 (2) (d) and (e) where the court may delay the decree absolute, or unresolved issues with regard to gender recognition. If satisfied that no such challenge is in existence the District Judge shall make the decree absolute. However this is subject to the proviso that if the notice is lodged more than 12 months after the grant of decree nisi there shall be lodged with the M8 notice an explanation in writing, which the District Judge may require to be verified by affidavit

a. Giving reasons for the delay
b. Stating whether the parties have lived with each other since the decree nisi and, if so, between what dates
c. And giving details of any child subsequently born to the parties.

34. The District Judge may make "any order on the application as he thinks fit".

35. Part 7 of the 2010 Rules contains identical provisions.

36. H relies on the decision of Payne J in Biggs v Biggs and Wheatley [1977] Fam 1 in support of the proposition that cohabitation for more than 6 months in total disentitles the Petitioner by way of absolute bar from having the decree made absolute, and that there is no discretion to make the decree absolute.

37. Biggs v Biggs and Wheatley is cited in Rayden and Jackson on Divorce and Family Matters, 18th edition, and in the Family Court Practice 2010 and 2011 editions (and probably in earlier editions as well). At Rayden and Jackson 9.8 the editors say in relation to Biggs v Biggs and Wheatley: "wife obtained a decree nisi of divorce founded on adultery: she lived with husband for a period exceeding six months after obtaining such a decree; she was not entitled to have the decree made absolute; the marriage had not broken down irretrievably". No more general proposition is extracted from the decision. The Family Court Practice 2010 at 2081 (commenting on Biggs v Biggs and Wheatley) states "where the parties have lived together for longer than six months during that period, there is likely to be a presumption that the marriage has not irretrievably broken down, a decree absolute may (emphasis added by me) be refused and the decree nisi rescinded".

38. Neither of those comments supports the stark proposition advanced by Mr Amos and Mr Brooks on behalf of H; but that is not the end of the matter.

39. W submits that the court has only a discretion: but Mr Peel was hard pressed to elucidate the principles on which such discretion should be exercised, save that he submitted that where the parties have separated once again and the marriage has irretrievably broken down there is no bar to making a decree absolute, and that it ought to be made absolute.

40. I think that it is necessary to delve a little more deeply into Payne J's decision in Biggs v Biggs and Wheatley. W had obtained her decree nisi whilst H was in prison. Upon his release they recommenced cohabitation. She applied to make the decree absolute whilst they remained living together. She said that she had reconciled with him on his assurances of changed behaviour but after about a year his behaviour deteriorated, and that although the relationship was still continuing she felt that the relationship was unstable and that to have a decree absolute would offer her some form of protection. Payne J described her approach as 'rather muddle-headed'.

41. The Queen's Proctor accepted the invitation of the County Court to intervene. He was represented by Mr Nicholas Wilson of counsel, now Lord Wilson of Culworth. The husband did not appear and was not represented.

42. In similar although not identical terms to the 2011 rules the 1973 Matrimonial Causes Rules provided that if the notice is lodged more than 12 months after the decree nisi "the registrar may require the applicant to provide an affidavit accounting for the delay and may make such an order on the application as he thinks fit or refer the application to a judge".

43. On behalf of W in Biggs v Biggs and Wheatley it was submitted that cohabitation afterdecree nisi was outside the scope of s 2 (1) MCA 1973: the MCA 1973 made no reference to "a post decree nisi situation", and there is no duty on the parties to disclose post decree nisi cohabitation. The new law had "swept away" the absolute bars to divorce such as connivance, collusion, condonation, conduct conducing and the other bars to divorce.

44. Payne J accepted the submission on behalf of the Queen's Proctor that:

a. On the evidence there was still a subsisting marriage.
b. The ground on which the decree was granted had gone: the court could not find that the marriage had irretrievably broken down.
c. The decree nisi is not a watershed: the marriage subsisted in law until both decrees were granted.
d. It was helpful to look at the "old law": these cases showed that where there had been revival of the condoned offence the court exercised its discretion and granted a decree: there was no evidence of further adultery by H.
e. Delay is relevant: it can only mean lack of exigency.

45. Payne J rejected W's application for leave to make the decree absolute and rescind the decree nisi, on the basis that:

a. Under the old law, the court would have found that W had condoned H's adultery: that would have been fatal to the decree absolute, whether the condonation had taken place before or after decree nisi.

b. The discretionary powers under the old law had been abolished by the 1973 Act. Revival had now gone, and a period of cohabitation of six months or more is as complete a bar to decree absolute as condonation would have been before the legislation of 1969.

c. The words "shall not be entitled to rely for the purposes of section 1 (2) (a)" govern both the petition for decree nisi and the application for decree absolute (10 H).

d. "There seem to me to be two reasons for saying that in the circumstances of this case there should not be a decree absolute. One is that at the date of the application for decree absolute the petitioner is still relying on section 1 (2) (a) of the Matrimonial Causes Act 1973 and before the date of the application for a decree absolute the parties have lived together for a period exceeding six months. The other reason is that at the date of the application for a decree for a decree absolute, it is impossible to say that there has been irretrievable breakdown of the marriage because in fact the marriage has been retrieved. The parties have become reconciled. One must at the date of decree absolute take into account all the facts which are known to the court at that time. The wife in this case ought not to be allowed, merely because she would like it, to have this marriage dissolved, so than she can continue to live as she is with the husband, but to hold over his head a decree absolute, treating the marriage as having broken down, when it has not.' (11 A to D)

e. 'If I approach the decision on the broader basis of its being discretionary, then, on the facts of this case, I feel bound to say that I would not exercise discretion in favour of the wife to give her leave for decree absolute." (11 D-E).

 46. Although not strictly binding on me, Biggs v Biggs and Wheatley must be regarded as strongly persuasive, particularly since Payne J's decision is, in effect, that there is no jurisdiction to grant a decree absolute where there has been 6 months cohabitation after knowledge of adultery. It is not submitted to me, and in any event I do not consider, that the passage of time or any change in social attitudes since 1977 should affect or undermine his analysis, particularly because the Rules now remain essentially the same. But in the light of the submissions it is necessary for me to decide what Payne J truly decided.

47. Mr Amos and Mr Brooks submit to me and I agree that Payne J's analysis that the marriage subsists until decree absolute is obviously correct: it is based on a long line of authority: see in particular Hulse v Hulse and Tavernor (1871) LR 2 P & D 259, which was cited with approval in Fender v Mildmay [1936] KB 111 (where the majority disagreed that after decree nisi the marriage was "merely a shell" and that matrimonial obligations did not endure post decree nisi).

48. Mr Peel submits that the true analysis is that Payne J approached the case on the basis that he had a discretion, which he exercised against the wife on the basis that she remained living with her husband: Payne J specifically said (on the basis of the continuing cohabitation) that as at the date of the application for decree absolute the marriage had been 'retrieved': this is not the case here. He submits that Payne J would not have come to the same conclusion had the marriage here come to an end by the date of the application/hearing.

49. Mr Amos submits that he arrived at his conclusions in the alternative.

50. Mr Peel refers me to Court v Court [1982] Fam 105. The parties had resumed cohabitation after the grant of decree nisi on a behaviour petition under s 1 (2) (b) of the MCA 1973. Sir John Arnold P accepted W's evidence that H began to treat her very badly indeed shortly afterwards, but accepted her reasons for continuing to remain with him for a period of time. He accepted, that as advanced by Mr E. James Holman (now Holman J) on behalf of the Queen's Proctor, that in the case of a section 1 (2) (b) petition he had a discretion as to whether to make the decree absolute, in contrast to the case of cohabitation after a decree nisi based on an adultery petition; and that the wording of section 2(3) MCA 1973, namely that the court is to disregard cohabitation of less than six months after the last incident of behaviour complained of, is to be distinguished from an adultery petition where the petitioner is "not entitled to rely" on adultery if the cohabitation took place in excess of six months after the last known incident, and that such cohabitation was also relevant to the question of whether the adultery was subjectively intolerable to the petitioner. Sir John Arnold described such cohabitation as 'fatal' to a petition under s 1 (2) (a). He did not specifically tie in his observation to the question of post decree nisi cohabitation, but even whilst strictly obiter that is an important and strong statement of principle. He also held that he had to have regard to the length of the delay.

51. Savage v Savage [1982] Fam 100 did not originally feature in either party's submissions. I asked to be addressed on it since it is referred to in the footnote to one of the passages to which I was referred in Rayden and Jackson. In that case cohabitation was resumed three months after the grant of decree nisi on a behaviour petition under the special procedure, and lasted for almost four years thereafter. Mr Holman again appeared for the Queen's Proctor. Wood J held that the proper analysis was that "one of the main issues in the exercise of this discretionary jurisdiction is whether the original decree nisi was pronounced on sound evidence and upon sound inferences to be drawn from such evidence". That is not inconsistent with Payne J's reasoning in Biggs v Biggs and Wheatley.

52. I accept Wood J's analysis that the rationale for the statutory provisions in Section 2 MCA 1973 is that the cohabitation undermines the basis for petition/decree because it fundamentally undermines the assertion that the marriage has not broken down irretrievably. Further in the case of adultery it demonstrates that the Petitioner does not find it subjectively intolerable to live with the Respondent and in the case of behaviour it demonstrates that objectively the condition that the Petitioner cannot reasonably be expected to live with the Respondent is not fulfilled. Wood J also accepted Mr Holman's submission that a stale petition "should not be given new life" particularly when followed by such a long period of cohabitation. Whilst expressing much sympathy for the wife he stated, as had been submitted by Mr Holman, that he had to have regard to public policy considerations.

53. I note also that Wood J queried why there was no statutory provision to cause a decree nisi to be rescinded automatically after two years reconciliation, a time period which was plainly in his view relevant to whether the decree should be made absolute.

54. I do not consider that the old law with regard to condonation, revival and so on comes into play in this exercise: it has been replaced by the provisions of the 1973 Act. I do not think that Payne J took a different view. I read him as having referred to the concepts of condonation and revival as illustrative rather than determinative of the exercise which he was conducting, as relevant to the exercise of discretion. The extract from Hansard provided by Mr Amos and Mr Brooks supports the conclusion that condonation, revival, connivance and collusion are no bar to divorce provided that there has not been six months cohabitation during the period of 'condonation'.

55. I do not accept that the distinction between the position of a party who has relied on adultery and one who has relied on behaviour is relevant in this context: the distinction is statutory, and is relevant as much pre decree nisi as post decree nisi. Nor is it relevant in this context that if an improper association is relied on as behaviour the court applies different rules to those where there is adultery. Those are the statutory provisions and they apply across the board: they do not affect the question of whether cohabitation is a bar after decree nisi as well as before it.

56. Mr Peel submits that the crucial stage at which the court must be satisfied of one of the five facts evidencing irretrievable breakdown of the marriage is the hearing of the petition leading to decree nisi pursuant to MCA 1973 1 (2). He submits that it is at that stage that the court has the duty to enquire into the facts, so far as it reasonably can - MCA 1973 S 1 (3-4) - and if the court is satisfied of any such fact, and unless it is not satisfied that the marriage has broken down irretrievably, then it shall grant a decree of divorce. He argues that there is no subsequent duty (or indeed ability) to enquire into the facts. I do not accept that. Where there is a delay of 12 months there is plainly a duty to enquire into the facts, and cohabitation, and the reason for delay, is specifically required to be considered.

57. I accept Mr Peel's submission that that there is no subsequent duty to enquire into the facts before a decree is made absolute, if the application is made within one year. The parties may cohabit for 6 months after decree nisi, and then apply for the decree to be made absolute within a year of the grant of decree nisi in the absence of any obligation expressed in the statute or the Rules to disclose to the court the fact of that cohabitation, because the provisions of Rule 2.49 do not come into play. This does not mean however that the parties are in fact entitled to rely on the decree where the Rules do not come into play, nor that there is in fact an entitlement to apply for decree absolute in such circumstances.

58. Rule 2.49 of the 1991 Rules makes no specific reference to the provisions of s 2 (1) of the 1973 Act, but there is plain reference to the need to disclose any periods of cohabitation.

59. I accept Mr Amos' submission that Payne J's decision in Biggs v Biggs and Wheatley has two alternative bases. The first, and primary, basis is that there is an absolute bar on making the decree absolute if there has been in excess of 6 months cohabitation, after knowledge of adultery, which remains in effect during the whole of the subsistence of the marriage. The second, and alternative, consideration was discretion. I do not accept that the fact that the parties were still cohabitating was determinative of the issue.

60. Payne J's approach may be also expressed on a slightly different basis, that since the fact of cohabitation in excess of six months after knowledge of adultery demonstrates that the basis upon which the decree nisi was pronounced has been invalidated then the fact of such cohabitation gives the court no discretion.

61. If I am wrong and I have a true discretion unfettered by MCA 1973 s 2 (1), I have to have regard to the reasons for the delay and whether the parties have lived with each other (which I accept means 'as husband and wife') since the decree nisi. Those are the only specific matters referred to. I accept that they are crucial and they are crucial because they undermine the basis for the grant of decree nisi.

62. When pressed, Mr Peel accepted that there must come a time when the period of cohabitation was such as to require the court to refuse the decree absolute. He accepted that reconciliation for 20 years might be sufficient.

63. I see no difference in principle between a four year reconciliation and a 20 year reconciliation. At the very least the provisions of MCA s2 (1) must have relevance to the exercise of the discretion, if there is an unfettered discretion.

64. The period of cohabitation here was years and not months. The parties resumed their married life in the fullest sense very shortly after the decree. They seem to have treated the decree as an irrelevance. They moved countries in reliance on their reconciliation. The facts of the case demonstrate to me that the marriage had not broken down as at the date of decree nisi.

65. W's case is that H continued to commit adultery after reconciliation and that she was aware of it since 2008. Nonetheless she remained reconciled. This seems also to weaken her case (insofar as it is relevant, which I do not accept that it is) that she was induced into reconciliation on the basis of promises subsequently broken, and that the marriage was a 'sham'. I agree with Wood J in Savage that in considering the statutory framework it is not the task of the judge to assess the quality of the cohabitation, and that in any event it would be an almost impossible task to do so.

66. The old discretions are no longer relevant. I am not assisted by Moore v Moore [1982] P. 382, or E v E [1950] P. 232.

67. Delay is in itself relevant, whether or not accompanied by cohabitation. Payne J in Biggs v Biggs and Wheatley, and Wood J in Savage v Savage, both stated that the length of the delay was a relevant factor. The fact of cohabitation is of central importance in exercising the discretion.

68. I do not accept Mr Peel's submission that the Court should now disregard the cohabitation, or make the decree absolute simply on the basis that the marriage has now broken down irretrievably. Savage v Savage is an example (albeit of a behaviour petition) where the marriage had broken down again by the time that the application for decree absolute was made. Wood J rejected the submission that the simple fact of irretrievable breakdown at the date of the application justified or compelled making the decree absolute. He found that the fact of cohabitation for a relatively lengthy period after a short period of separation demonstrated that the marriage had not irretrievably broken down at the date of decree nisi, and that as a matter of public policy the decree should not be made absolute.

69. I decline to give leave for the decree to be made absolute.

Issue 3 (a) Should the decree nisi be rescinded?
70. I accept Mr Peel's submission that there is no provision within the MCA 1973 providing for the rescission of decree nisi if there has been cohabitation for in excess of 6 months after a decree nisi. In contrast there are a number of examples within the statute itself enabling the court to rescind a decree nisi or to delay it but none of these arise out of MCA 1973 S2(1).

71. Both parties accept that in principle if I refuse W's application I can rescind the decree nisi (notwithstanding that there is no specific reference to the power to do so in the MCA 1973, nor in either the 1991 or the 2010 Rules) as Payne J did in Biggs v Biggs and Wheatley. In three cases in the early 2000s three separate decisions in the Family Division confirmed the existence of the residual inherent power of the court to rescind a decree nisi in order that a party might present a new petition with a prayer claiming a pension share, otherwise time barred: see S v S (Rescission of Decree Nisi: Pension Sharing Provision) [2002] 1 FLR 457 (where both parties consented). In S v S Singer J held that the jurisdiction was based on the "court's ability to control proceedings and implies and justifies the need to bring them to an end. Where a decree nisi has been pronounced but, for whatever reason , it is clear no application to make it absolute is likely to be made, then if the matter is brought to its attention the court does have the ability to and should mitigate any stalemate which then arises. Every such decision will involve the exercise of a discretion, although the fact that both parties see the same outcome should be a potent but not overwhelming factor." Bodey J in H v H (Pension Sharing: Rescission of Decree Nisi) [2002] EWHC 767 (Fam), [2002] 2 FLR 116 and Charles J in Rye v Rye [2002] EWHC 956 (Fam), [2002] 2 FLR 981 both agreed that they had such jurisdiction, but that it could not and should not be exercised where one party did not agree.

72. However H only accepts that I should rescind the decree nisi if I also dismiss the petition. He submits that Singer, Bodey and Charles JJ all held that consent was an important factor when considering a "freestanding" application under the inherent jurisdiction to rescind decree nisi. Bodey J held that "But if a petitioner for some reason changes his or her mind about being divorced and the respondent cannot, or does not, make any application about the matter, I can see no justification for the court declining jurisdiction to rescind the decree nisi. Whether or not it would actually do so (i.e. rescind) would depend on the overall merits, including amongst other things a balancing of the likely impact on the respective parties. I find it impossible to conceive of circumstances in which a court, exercising its discretion judicially, could properly allow such a retrospective readjustment of its process and of its orders against the opposition of the respondent with the sole motive of getting round the intention of parliament" (i.e. that pension sharing orders should not be available before a certain date)." He held that public policy considerations arose when considering whether he should rescind a decree nisi non-consensually in order that one spouse might seek pension sharing provisions otherwise time barred. He declined to rescind the decree.

73. Charles J held that "in the absence of consent from both parties (or non-opposition from one) it would be an impermissible exercise by the court of its discretion to seek to circumvent those statutory provisions (in respect of pension sharing orders) by rescinding the decree nisi. In other words… the husband is entitled to rely on those statutory provisions notwithstanding any view the court may have as to the merits or fairness of that stance and it would be an improper exercise of judicial discretion to prevent him from doing so."

74. Mr Amos submits that rescission is normally sought where the petition is no longer to be pursued, or where fresh proceedings are to be started (for example on no-fault grounds or to enable different claims for financial provision to be made). He says that W's application for rescission is for neither of those purposes. She only wishes to rescind in order to supplement and revive an otherwise doomed petition. I do not accept that those reasons are necessarily in themselves a bar to rescinding the decree nisi.

75. The circumstances in this case are importantly different from the pension sharing cases, where one party wishes to rely on the decree and proceed to progress the divorce through to decree absolute but on the basis that the old, pre–pension sharing law applies. In this case H wishes to keep the decree nisi in being in order to block W proceeding in this jurisdiction. The reality is that W wishes to rescind the decree nisi in order to revive her petition: if she cannot do so she would not necessarily wish to rescind. H is prepared to rescind, but only on his terms, but does not wish to rely on the decree, which, on my ruling above, can never be made absolute.

76. H submits that I should not rescind the decree nisi on W's application alone: and that this would not create a "limping divorce" because the reality is that there will be a divorce abroad, for instance in Singapore. I do not think that that is a satisfactory answer. Both parties were content for this court to retain jurisdiction in respect of this marriage, and it does create a "limping divorce": there may be no foreign decree.

77. I do accept that:

a. If I do not rescind the decree nisi it remains extant;
b. There is no utility in a "limping divorce."

78. I consider that public policy considerations apply when I am asked to perpetuate a decree nisi which cannot be made absolute. To do so would be wrong in principle. I note that in Biggs v Biggs and Wheatley the decree was rescinded without it seems any consent being sought, of the court's own motion, and, probably, on public policy grounds. In Savage v Savage the husband did consent, but it does not seem from Wood J's judgment that his consent was regarded as crucial. It was common ground in Savage v Savage that if the decree absolute were refused and the decree nisi rescinded, W should immediately present a second petition.

79. I have come to the conclusion that I cannot consider the question of rescission without forming a view on the crucial last question, which is whether W can or should be permitted to revive her 2006 petition.

Issue 3 (b): Should I dismiss the petition?
80. I accept that the court may make any order it thinks fit, and that this must include dismissing the petition: see Newman v Newman, McLean v McLean, Jones v Jones (The Queen's Proctor Intervening) [1984] FLR 835.

81. Sir John Arnold said that the Court had "ample jurisdiction" to dismiss the petition in such a case, although after rescinding the decree nisi he did not do so because it was based on behaviour and cohabitation was not fatal to the petition.

82. I note that in that case Sir John Arnold P. held that in excess of six months cohabitation in a behaviour case would "affect the mind of the court" as to whether or not the allegations in the petition were made out.

83. The question of whether I should dismiss the petition is intimately bound up with the question of whether W should supplement her petition. If I do not, then there is no utility in a petition upon which she cannot proceed.

84. I do not accept that I must dismiss the petition simply because the parties have cohabited since decree nisi, although I may.

Issue 4: should I grant W permission to file an amended or supplemental petition
Which Rules apply?

85. The 2010 Rules came into force on 6 April 2011. By Practice Direction 36A of the 2010 Rules, 'Transitional Arrangements',

a. In respect of "existing proceedings" (those started before 6 April 2011) the "the previous Rules" (in this case the 1991 Rules) apply.
b. The general scheme is to apply the 2010 Rules to existing proceedings so far as is practicable, but where this is not practicable, to apply the 'previous rules' (in this case the 1991 Rules) to such proceedings.
c. By PD 36A 3.1 "where an initiating step has been taken in a case before 6 April 2011, in particular a step using forms or other documentation required by the previous rules, the case will proceed in the first instance" under the 1991 Rules.
d. By PD 36A 3.5 where any step has been taken in the proceedings in accordance with the previous rules, that step will remain valid on or after that date and a party will not normally (my emphasis) be required to take any action that would amount to taking the step again under the 2010 Rules.
e. By PD 36A 4.1, where a new step is to be taken in any existing proceedings on or after 6 April 2011, it is to be taken under the 2010 Rules.
f. By PD 36A 4.4 (1), where proceedings come before a court (whether at a hearing or on paper) for the first time on or after 6 April 2011, the court may direct how the 2010 Rules are to apply to the proceedings and may disapply certain provisions of the 2010 Rules.
g. By PD 36A 4.4 (2), the general presumption will be that the 2010 Rules will apply to the proceedings from then on unless the court directs or the practice direction provides otherwise.
h. By PD 36A 4.4 (3), if an application has been issued before 6 April 2011 and the hearing of the application has been set on or after that date, the general presumption is that the application will be decided having regard to the 2010 Rules.
i. By PD 36A 4.4 (4), when the first occasion on which existing proceedings are before a court on or after 6 April 2011 is a hearing of a substantive issue, the general presumption is that the hearing will be conducted according to the 2010 Rules.

W's proposed supplemental petition and proposed second petition
86. In her proposed supplemental petition W relies on H's alleged adultery with a woman whom she does not wish to name and also on H's asserted behaviour. I accept Mr Amos' submission (I note that this was a view also expressed by District Judge Robinson) that if (as the pleadings suggest) she became aware of subsequent acts of adultery but remained reconciled and living with H, she cannot rely on any such allegation if succeeded by cohabitation in excess of 6 months. She makes a number of assertions about H's behaviour. The last such alleged incident was in December 2010 and she is entitled therefore to rely on previous alleged behaviour. She is entitled to rely on improper association as an aspect of behaviour. She is entitled to rely on adultery, so long as it is not succeeded by six months cohabitation after it came to her knowledge.

87. W pleads the same asserted facts in her proposed second petition. She does not pursue this at the moment. She relies on H's asserted domicile in England and Wales, pleading that he has an English domicile of origin which he has not relinquished in favour of a Singaporean domicile of choice. It does not seem self evident without further enquiry that H has acquired a Singaporean domicile of choice. I can see however that W does not wish to embark on what might be a protracted trial of the domicile issue, and to abandon her 2006 proceedings and issue fresh proceedings here would inevitably lead to an application by H for a stay on the basis that his petition is first in time, and that the proceedings should progress on the basis of his Singapore petition, as the jurisdiction with which the parties have the closest connection.

Amending and supplementing petitions
88. The 2010 Rules do not provide for the filing of a supplemental petition. Rule 7.13 provides for amendment only. I accept that this is a deliberate omission, and effects a substantial and important change in procedure.

89. A petition can be amended where the further particulars occurred before the date of the petition. W accepts that this is not appropriate here.

90. I accept that in this case if W wishes to rely on events post cohabitation she must file a supplemental petition.

91. A supplemental petition is treated as part of the original petition: Spawforth v Spawforth [1946] P 131, Sandler v Sandler [1934] P 149.

92. Mr Amos relies on Spawforth in support of the proposition that since a supplemental petition forms part of the original petition the facts alleged in the supplemental petition must have been in place at the date of the original petition. In Spawforth the husband was in a state of desertion but the statutory period did not expire until later. W sought to file a supplemental petition pleading desertion dating from a later date. Hodson J declined to permit her to do so, since she was unable to rely on 3 years desertion at the date of the petition. I do not think that this decision prevents a party from supplementing a petition by pleading subsequent acts of adultery. That Spawforth v Spawforth is a decision confined to desertion or separation is supported by Rayden and Jackson at 10.12, where it is specifically stated that if acts or any of them occurred after the date of the petition or answer they should normally be added by supplemental petition or answer.

93. Further petitions may be issued while an undisposed of petition lies on the court file. Rayden and Jackson 10.12 states that this usually occurs when a party wishes to rely on separation but is not confined to such circumstances.

94. H argues that as at the date when W issued her application to supplement her petition there was a decree nisi in force and consequently it was not possible to supplement her petition which had been determined as at the date on decree nisi, when the court had exercised its duty to "enquire into the facts". I am referred to In Re Suffield v Watts (1880) 20 QBD 693 (CA). I accept that the circumstances in which pleadings may be amended between judgment and order do not apply here: W does not wish to amend her pleadings after judgment: she wishes the 'judgment' to be set aside by way of rescission and then to supplement her pleadings.

95. Mr Amos submits that although there is no specific prohibition on filing a supplemental petition after decree nisi, such a step was not contemplated by the 1991 Rules: for instance, although Rule 2.11 provides that a supplemental petition may be filed at any time before an Answer is filed, Rule 2.11 (4) contains provisions for extending time to file and serve an answer, and where leave to file a supplemental petition has been granted after directions for trial have been given, to stay the hearing pending renewed directions for trial. But if a decree nisi has been pronounced, no further answer can be filed, and there is no further trial in which directions for trial can be given. This is for the obvious reason that the trial of the facts would have been completed, the facts found, and there is no further trial in respect of which directions can be given. Mr Amos relies on Scharrer v Scharrer, the Times, 6 July 1909 (CA). A wife filed a petition to which the husband filed an answer, but they subsequently reconciled and the wife's solicitors were instructed to withdraw the petition. This was not done. 20 years later the parties separated again. W applied to supplement her petition but the court declined to permit her to do so and on Appeal the Court of Appeal dismissed both her application and the original petition. There was no decree nisi.

96. W relies on Smith, (Smith A.E. v Smith H. D.) (1935) (unreported) noted in Latey's Law and Practice in Divorce and Matrimonial Causes, 13th Ed under the heading "Directions". It is not stated whether the application was made post decree nisi or on what basis the petition was brought. The note reads "…Langton J allowed an appeal from the refusal of a registrar to give leave to file a Supplemental petition where the parties resumed cohabitation between the date of the Petition and the application to file the Supplemental petition. The President is of the Opinion that this decision shall be followed."

97. These decisions, although undoubtedly historical, and scant in detail, are the closest to guidance that I have. They point in different directions. It may not matter that there were no decrees nisi in either of these cases, since for the purposes of this analysis I am working on the basis that the court can rescind the decree nisi.

98. However in my view the 2010 Rules are of crucial importance. W's application for the decree to be made absolute was an "initiating step" in existing proceedings, but Mr Amos submits that it was not an effective initiating step because she had already obtained a decree nisi, and that I cannot consider the application until the decree has been rescinded: and therefore that I must apply the 2010 Rules.

99. I think that that Mr Amos is right. Thus, although 'normally' it will not be necessary to take a 'step' again in this case the 'step' cannot be taken until decree nisi is rescinded. My view is that the new Rules apply and I cannot permit W to supplement her petition.

100. In the alternative, if the 2010 Rules do not prevent me from giving her permission outright to supplement her petition, the fact that this route is no longer available to her must be a relevant factor in this transitional case. I do not have to apply the 1991 Rules just because the step was initiated under them.

101. I bear in mind that the parties are still parties to proceedings before the courts of England and Wales which have not been finally concluded, and that it was open to them to seek to set aside the decree nisi on the basis of cohabitation, but neither did so. I also bear in mind that if the decree nisi had been rescinded prior to 6 April 2012 W would have been procedurally in the same position that she would have been in had the decree nisi not been pronounced.

102. But I also accept that the parties' connection with this jurisdiction is long past and that the petition is extremely "stale", and based upon events upon which W can no longer rely, and which cannot, in contrast with behaviour, be revived. The grant of decree nisi is a crucial watershed which cannot be ignored. She could (as in Savage v Savage) issue a second petition: but only if there is jurisdiction.

103. Like DJ Robinson, my initial instinct was that W should be permitted to supplement her petition. But I have reconsidered this.

104. If W is not to proceed on a supplemental petition, then it follows that I must rescind the decree and dismiss the petition. My primary decision is that there is no power to permit her to supplement.

105. If I am wrong that there is an absolute bar on filing a supplemental petition, then in my view the following factors support my refusal to do so:

a. the antiquity of the petition, followed by over four years cohabitation;
b. the parties' lack of jurisdictional and actual connection with this jurisdiction (subject to H's domicile);
c. the application was made before the implementation of the new Rules and the new Rules are now in force and must be taken into account;
d. to supplement her petition is artificial: were it not for the jurisdictional issues W would have sought to issue a fresh petition.

106. I do not regard the fact that W originally invoked the jurisdiction of the English Court and that the parties remain parties to those proceedings, as yet finally unresolved, as providing a sufficient justification for her continuing to invoke it.

107. Accordingly I take the issues of rescission and dismissal together in the context of the paragraphs above, and

a. Rescind the decree nisi;
b. Dismiss the petition.