Divorce & Reconciliation

Imagine this scenario:

A married couple separated 10 years ago, one party issued divorce proceedings and decree nisi was pronounced. The parties then reconciled but once again now wish to divorce.

So do the original proceedings have to be dismissed or can a fresh petition be issued?

Laws regarding divorce and reconciliation

If the original petition for a divorce has not been dismissed, or finally determined by the Court, that original petition still remains ‘live’ despite the lapse in time. Where there is already a petition by the same Petitioner on file which has not been dismissed or finally determined, that Petitioner cannot file a further (or second) petition without first obtaining permission from the Court, except that no permission is required where the purpose of the further petition is to seek a divorce, or dissolution, following the expiration of one year from the date of the marriage, or civil partnership, on the basis of the same facts contained in an original application for judicial separation, or for an order for separation. If the first petition by the same Petitioner has not been dismissed or finally determined, permission must be obtained to file a further petition.

It should be noted that amended and supplemental petitions operate on a principle of relation back to the date of issue of the original petition. This means that it is not possible to allege, in a supplemental petition, for example, a period of desertion or separation expiring after the date of the original petition. A further petition will be required for this purpose. Nonetheless, a supplemental petition may contain further allegations of unreasonable behaviour or adultery postdating the date of the original petition. This may not be appropriate if there is a substantial delay since the filing of the original petition, depending on the circumstances of the case and whether there have been any lengthy periods of cohabitation.

Where the parties decide to proceed with the existing petition, if an application for decree absolute is lodged more than 12 months after the decree nisi, an explanation in writing must be lodged with the application, setting out the following:

1. The reasons for the delay;
2. Confirmation as to whether the parties have lived with each other since the decree nisi and, if so, between what dates—the Court has a discretion as to whether a decree absolute should be granted and whether the decree nisi should be rescinded where there has been cohabitation in excess of six months; and
3. Confirmation as to whether the wife has given birth to a child since the date of decree nisi or, if the husband is the applicant, whether he has reason to believe that his wife has given birth to a child since the decree nisi.

The District Judge may require the applicant to file an affidavit verifying the explanation or to verify the explanation with a statement of truth. Generally, a delay in applying for a decree to be made absolute 12 months from the decree nisi should not prejudice the applicant if the Court thinks it is otherwise appropriate to make the decree absolute.

Commonly, the reason for the delay will be that the parties had been seeking an agreement or order in relation to finances, the children of the family or both. If the delay is very significant, the Court may require further information.

The Respondent may also apply for the decree absolute. Where no application has been made for the decree nisi to be made absolute by the party to whom it was granted. The other party may make an application to the Court after the expiration of three months after the earliest date on which the party who obtained the decree nisi could have applied for the decree nisi to be made absolute. Where such an application is made, the Court may make the decree absolute, rescind the decree, order a further enquiry or otherwise deal with the case as the Court thinks fit.