Test for rescinding decree nisi

In Cazalet v Abu-Jalaf [2023] EWCA Civ 1065, the court overturned Mr Justice Mostyn’s dismissal of Olga Cazalet’s application to rescind a decree nisi and decision to grant the decree absolute sought by Walid Abu-Zalaf.

The couple married in June 2012 after signing a prenuptial agreement, which provided for the wife to receive increasing levels of financial provision upon divorce depending on number of years from marriage to separation. The couple separated in August 2013. Decree nisi was pronounced in November 2013 but neither party sought to make the decree absolute. The prenuptial agreement was not implemented as the husband continued to maintain his wife and children.

However, the wife said the couple reconciled from November 2014 until March 2020. The husband denied this, asserting that while the relationship ‘rekindled’ it was not a marital reconciliation. In 2021, the wife applied to rescind the decree nisi, aiming to file a fresh divorce application which would treat the marriage as having lasted eight years. The husband responded by applying for the decree nisi to be made absolute.

The Court of Appeal unanimously confirmed a reconciliation had taken place, which altered the duration of marriage and consequent financial provision.

Delivering the main judgment, Lady Justice King said the wife’s application ‘falls comfortably within’ the ground of ‘new event or material change of circumstances’, as set out by Cobb J in NP v TP (Divorce) [2022[EWFC 78.

King LJ held Mostyn J applied the wrong test when he required the wife to prove marital reconciliation on the judge’s own qualitative assessment and that it would be contrary to the interests of justice not to rescind the decree.

Peter Burgess, partner at Burgess Mee Family Law, representing Cazalet, said: ‘In place of the trial judge’s review of arcane law and qualitative assessment of the marriage, the Court of Appeal has substituted one simple test that requires the court to evaluate a change in circumstance to see whether a decree nisi should be set aside.’