On the 2 May 2012, in the case of So Youn Kim v Anthony Thomas Morris [2012] EWHC 1103 (Fam), the High Court was asked to decide a number of issues concerning whether the applicant Wife could file for a decree absolute some 6 years after the decree nisi was issued which included four years of co-habitation. If there was an absolute bar whether the Court could use its discretion to permit the Wife to file a supplemental petition or a second petition if the original petition were dismissed.

Background

The Wife was a United States national and the respondent Husband was a British national. The couple were married in 2003 and were habitually resident in the United Kingdom.

The Wife petitioned for divorce in January 2006 on the grounds of the Husband’s adultery and relied in the couple’s habitual residence in England as the basis of jurisdiction. The decree nisi was granted unopposed in April 2006.

In July 2006, the couple reconciled. In 2008, the Husband took a job in Singapore and moved there to live and the Wife joined him shortly there afterwards where they continued to co-habit until around August 2010 when the Wife moved to Hong Kong. The parties spent little time together after this.

The Wife’s position was that the reconciliation had been based on the Husband’s promise to remain faithful whereas he continued to have affairs after the reconciliation. The Husband denied these allegations and stated that the marriage had broken down because of the Wife’s behaviour and that she left him without a cause.

In February 2011, the Wife applied for the decree nisi to be made absolute with an affidavit to explain the delay of more then one year since the decree nisi which was required by Rule 2.49 of the Family Proceedings Rules (then in force). The Husband asserted that the reconciliation post decree nisi required the decree to be rescinded. The Wife therefore issued formal applications seeking recession of the decree nisi, leave to file a supplemental a supplemental petition and leave to file a second petition. H contended that the co-habitation for more than six months after knowledge of adultery disentitled a petitioner from having a decree made absolute relying on the case of Biggs v Biggs and Wheatley [1977] Fam.1.Findings

In delivering the judgement, The Honourable Mrs Justice Parker DBE held that the rationale for the provisions of s. 2 of the Matrimonial Causes Act 1973 was that cohabitation undermined the basis for the petition or decree because it fundamentally undermined the assertion that the marriage had broken down irretrievably. It was held that in the case of adultery it demonstrated that the petitioner did not find it subjectively intolerable to live with the respondent. The fact that the parties had resumed their married life very shortly after the decree nisi and had moved countries on the strength of the reconciliation made it clear that that the marriage had not broken down as at the date of the decree nisi and there was no basis to make it absolute.

Turing to the point of the Court using its discretion to allow the Wife to supplement the original petition or file a second petition with allegations of subsequent adultery, Mrs Justice Parker held that even though the decree nisi was initiated under the 1991 Family Proceedings Rules the application to make the decree absolute was an “initiating step”. Therefore the Family Procedure Rules 2010 would apply which prevented W from supplementing her petition by pleading subsequent acts of adultery. Even if there was no absolute bar on filing a supplemental petition Mrs Justice Parker would not exercise discretion to do so on the grounds of (a) the antiquity of the petition followed by the four years of co-habitation; (b) the parties lack of jurisdiction and actual connection with the United Kingdom; (c) the coming into force of the new Family Procedure Rules 2010; and (d) the artificial nature of the application as were it not for the jurisdictional issues, the Wife would have sought to issue a fresh petition.

Therefore the decree nisi was rescinded and the petition dismissed.