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The Divorce, Dissolution and Separation Bill: So long, farewell, auf Wiedersehen, nisi

Simon Rowbotham, Barrister with 7 Bedford Row, prepares to wave goodbye to some familiar friends.

Simon Edward Rowbotham, Barrister 7 Bedford Row, London


On 8 June 2020, the Divorce, Dissolution and Separation Bill passed its second reading in the House of Commons. Despite reported resistance from members of the Conservative Party, the Bill is expected to complete its passage through Parliament in the next few weeks. When in force, the Divorce, Dissolution and Separation Act 2020 ('the 2020 Act') will remove the requirement to establish one of the statutory facts in support of irretrievable breakdown – which remains the sole ground for divorce or dissolution – thus introducing the long-awaited 'no fault' scheme 1.  Of less importance though still of note, the 2020 Act also waves goodbye to our old friends, the 'petition', the 'decree nisi' and the 'decree absolute', if in name only.

This latter change is arguably overdue considered in the context of previous efforts to make the justice system more 'understandable' to its users; over two decades have passed since the work of Lord Woolf (then Master of the Rolls) led to the introduction of the Civil Procedure Rules in 1998 and the shift towards a more modern usage. Since then, 'plaintiffs' have become 'claimants', who no longer 'discover' but 'disclose', and an inter partes hearing has simply become 'on notice'. Efforts in the family law arena have, perhaps, been more mixed in their success; six years on, the rebranding of 'contact orders' as 'child arrangements orders to spend time with' remains as clunky as it seemed in April 2014.

Set against those earlier reforms, the 2020 Act removes terminology that now feels anachronistic. So it is that the good old 'petition' will become an 'application for a divorce order', 'decree absolute' will now be known as a 'final divorce order' and the 'decree nisi' is to be rebranded as the 'conditional order'. In so doing, the language of divorce will be brought in line with that of civil partnerships 2.  No doubt this will come as welcome relief to those tasked with advising clients; where the term 'absolute' is self-explanatory, 'nisi' is meaningless to anyone not versed in Latin. Before we say a terminological farewell to nisi, however, it pays to reflect on this quirk of modern matrimonial law: a "Who Do You Think You Are" of decree nisi, if you will.

The modern law of divorce ('modern' in the sense of leaving the jurisdiction of the Church courts) arose in the wake of a Royal Commission in 1853, leading to the Matrimonial Causes Act 1857 3 and the establishment of the Court for Divorce and Matrimonial Causes 4.  For the first time, barristers were given rights of audience in an area of practice hitherto the domain of the doctors of Doctors' Commons. Under the 1857 Act, adultery was the sole ground for divorce and the court was granted the power to order 'a single decree of dissolution of marriage, leaving the parties free to marry again as soon as it was clear that there would be no appeal from the court's decision' 5.  There was no provision for a conditional order; the decree nisi, then, is not quite as old as one might think.

In the wake of the 1857 Act, fears arose that decrees of divorce were being obtained by 'collusion' between parties, an act constituting one of the equitable bars to a petition (along with condonation and conduct conducing). As was recorded by the Royal Commission in the 1950s:

Shortly after the passing of the Act of 1857, some anxiety was felt that parties were obtaining divorce decrees either collusively or without presenting material facts to the court. It appears that judges found it extremely difficult to carry out the requirement that he should satisfy himself of the absence of bars to relief, in particular collusion, in undefended cases, where only one side of the case was presented to the court. 6

From our vantage point in the twenty-first century, few now would likely share the disquiet of the nineteenth-century judiciary and its fear that one or more of the bars to divorce might be overlooked. Such was that disquiet, however, that Parliament quickly legislated to address those concerns.

Section 7 of the Matrimonial Causes Act 1860 introduced an interim stage on a petition for divorce, in which time enquiries might be made by the Queen's Proctor upon their assistance being invoked by the court 7.  An interim decree would be pronounced in the first instance, to be followed by a final decree unless (in Latin, nisi) an objection was made within a period of three months 8.  In the event their investigation indicated collusion between the spouses, it was open to the Queen's Proctor to show cause and intervene. With that, the decrees nisi and absolute were born. The minimum period between nisi and absolute would later increase to six months in 1866 before being reduced in 1946 to the six weeks with which we are now familiar, following the recommendations of the Denning Committee 9.

The success of this investigative regime would later prove something of a farce; by the early twentieth century, it had come to public attention that couples were staging fictitious acts of adultery in what have been described as 'the so-called Hotel Cases, in which husband and wife agreed on a divorce and the husband would then arrange to provide evidence of adultery (in fact never committed)' 10.  Today, the delay between decrees nisi and absolute continues to exist as enshrined in the Matrimonial Causes Act 1973 (as amended), as does the role of the Queen's Proctor, whose intervention is rare but not unheard of 11.  From its origin as a safeguard against collusive divorce, however, the decree nisi has assumed a very different importance; having determined that the granting of a final decree remains at the court's discretion, the delay of decree absolute is now widely used to avoid prejudice to one party pending the conclusion of financial remedy proceedings 12.  This often includes ensuring preservation of assets otherwise jeopardised by the granting of decree absolute, particularly pension savings otherwise lost on the death of the policy holder.

The humble nisi, then, is shortly due to depart the Statute books at the grand old age of 120 years this year. Of course, the terms 'petition', 'absolute' and 'nisi' will remain in use while petitions issued prior to the commencement date of the 2020 Act remain in proceedings. No doubt they will also remain in the diction of advocates and the Bench for years to come, much as 'residence orders' and 'ancillary relief' are still spoken of in court corridors. In due time, however, they will be confined to historical footnotes and popular culture 13


17/06/20

1 Divorce, Dissolution and Separation Bill, ss. 1 and 3; c.f. Matrimonial Causes Act 1973, s. 1 and the Civil Partnership Act 2004, s. 44
2 Civil Partnership Act 2004, s. 37
3 Matrimonial Causes Act 1857 (20 & 21 Vict., c. 85)
4 J. Baker, An Introduction to English Legal History, 5th ed. (Oxford University Press, 2019), p. 536
5 Royal Commission on Marriage and Divorce, Report 1951-1955, Cmd. 9678 (Her Majesty's Stationery Office, Reprint 1966) ("Morton Report"), para. 947
6 Morton Report, above n. 5, para. 947
7 Matrimonial Causes Act 1860 (23 & 24 Vict., c. 144)
8 Baker, above n. 4, pp. 536-537
9 Morton Report, above n. 5, p. 249, n. 16
10 S.M. Cretney, Principles of Family Law, 1st ed. (Sweet & Maxwell, 1974), p. 85, n. 46; see also A. P. Herbert, Holy Deadlock (1934).
11 Matrimonial Causes Act 1973, s. 8. For a recent example of the role of the Queen's Proctor see e.g. Grasso v Naik [2017] EWHC 2789 (Fam), [2018] 1 FLR 753, FD. Given the proposed removal of the 'facts' and the court's duty to inquire into them under s. 1(3), the future role for the Queen's Proctor appears uncertain.
12 Dart v Dart [1996] 2 FLR 286, CA; and Thakkar v Thakkar [2016] EWHC 2488 (Fam), [2017] 2 FLR 399, FD.
13 For example, Kenneth Branagh's 2015 revival of Terence Rattigan's Harlequinade (1948), even if nisi was unfortunately pronounced "nissy".