Case No. FD13D04422

.42.Mr Ewins KC argues that Owen v Owen is not relevant. He submits that the Route A procedure, and its case law, are confined to applications by disaffected respondents who do not dispute the end of the marriage but who wish to contest adverse factual findings made against them, and that this is not such a case. The only relevant test here, he submits, is that set out in Savage v Savage, which is at a lower level than that in Owen v Owen. Mr Ewins’ argument overlooks the fact that Route C cannot be invoked by a petitioner. Rather, Route C presupposes that the petitioner will be a passive actor and the only directly live issue is the respondent’s application for decree absolute. The application made by the petitioner here is under Route A alone and there is nothing to suggest that the jurisprudence developed under that procedure does not apply to her application. The only reason that the Owen case law is in play at all is because the husband made his own application for the decree to be made absolute.43.In my judgment, however, there is (or should be) no substantive difference between the test under Route A and the test under Route C. It would be illogical and irrational if it were otherwise. Under each route, in a “structured” discretionary exercise, the court will need to be satisfied of the following:i)that material facts existed at the time of the making of decree nisi but which were not placed before the trial court (“Category 1 facts”), and/or that subsequent events occurred (“Category 2 facts”), which furnish the clear conclusion that the findings made, or inferences drawn, by the trial court when making decree nisi were not justified and therefore wrong; and ii)that the degree of error is such that to allow the decree to stand would be so contrary to the justice of the case that the serious step of setting aside an order made by due process of law is justified. Although the exercise is said to be discretionary it is more realistically to be regarded as evaluative. The evaluation of the materiality and weight of the new facts will drive the decision. It would be an error of law if a judge decided a rescission case by reference to factors outside this discipline. 44.Finally, I record that Mr Ewins KC has reminded me that when judging the relationship between the parties, I should keep in mind that marriages come in all shapes and sizes. He has cited my own decision of NB v MI [2021] EWHC 224 (Fam) where I stated at [26]:“i) The contract of marriage is a very simple one, which does not take a high degree of intelligence to comprehend.ii) Marriage is status-specific not spouse-specific.iii) While capacity to choose to engage in sexual relations and capacity to marry normally function at an equivalent level, they do not stand and fall together; the one is not conditional on the other.iv) A sexual relationship is not necessary for a valid marriage.v) The procreation of children is not an end of the institution of marriage.vi) Marriage bestows on the spouses a particular status. It creates a union of mutual and reciprocal expectations of which the foremost is the enjoyment of each other's society, comfort and assistance. The general end of the institution of marriage is the solace and satisfaction of man and woman.vii) There may be financial consequences to a marriage and following its dissolution. But it is not of the essence of the marriage contract for the spouses to know of, let alone understand, those consequences.viii) Although most married couples live together and love one another this is not of the essence of the marriage contract.ix) The wisdom of a marriage is irrelevant.”45.I accept that a marriage may function without cohabitation or a sexual relationship. A functioning marriage does not require the parties to love one another. It does require, however, that the parties recognise that they enjoy a particular status and that they are in a formal union of mutual and reciprocal expectations of which the foremost is the sharing of each other’s society, comfort and assistance. It is true that some marriages degenerate into a toxic relationship of antipathy, resentment and cruelty. Some time was spent during the hearing discussing the marriage of Martha and George in “Who’s Afraid of Virginia Woolf?” Notwithstanding their appalling mutual loathing it was a functioning marriage – it was one of those marriages where the spouses can neither live peaceably with each other nor live apart. But no one forms a marriage on that basis. And it is hard to conceive, following a decree nisi, that parties would reconcile on that basis.