Divorce proceedings are rarely cut and dry, especially where the passage of time adds complexity to matters. This was certainly so in a recent case that required a Family Court judge to rule on the validity of a decree nisi.

The case centred on the divorce proceedings of a couple in their fifties and focused on a decree nisi that had been pronounced in 2012, following an application by the husband.

Now seeking to finalise the divorce with a decree absolute, the husband asserted that the decree nisi had been properly made back in 2012 and that nothing had happened since to undermine the basis upon which it was pronounced – that the husband could not reasonably be expected to live with the wife, and the marriage had irretrievably broken down.

Challenging this argument, however, the man's wife opposed the decree absolute application and sought rescission of the decree nisi, on the grounds that between the time it was pronounced and the occasion of her husband applying for decree absolute, the parties had reconciled. She asserted that their true separation did not come about until 2020.

The dispute regarding the date of the divorce had become a key bone of contention as a result of the husband accruing exceptional wealth in recent years. In 2012 his estimate of the couple's joint assets was £3.2 million, but he had since accrued gross assets of £100 million.

In the event of the decree nisi being rescinded and/or the Court finding that the husband was not entitled to decree absolute, the wife argued that the wealth he had built up since 2013 should fall to be considered in the pot of matrimonial assets.

After hearing evidence from both parties, the Court found that during the disputed period, there were times when the husband and wife were sharing a common life, notwithstanding that they were living in separate houses. They were also found to have been 'conducting a functional relationship', which included intimacy, socialising together with family and friends, and regularly contemplating and discussing plans for their future lives together.

Given this conduct, it was ruled that there had been a material change of circumstances which invalidated the basis, or fundamental assumption, upon which the decree nisi was made. The decree absolute was refused and the decree nisi rescinded. It was ordered that the divorce and financial remedy application should proceed on the wife's 2023 cross-petition.