Case No. FD13D04422

(1) Where a decree of divorce has been granted but not made absolute, then, without prejudice to section 8 above, any person (excluding a party to the proceedings other than the Queen's Proctor) may show cause why the decree should not be made absolute by reason of material facts not having been brought before the court; and in such a case the court may—(a) notwithstanding anything in section 1(5) above (but subject to sections 10(2) to (4) and 41 below) make the decree absolute; or(b) rescind the decree; or(c) require further inquiry; or(d) otherwise deal with the case as it thinks fit.(2) Where a decree of divorce has been granted and no application for it to be made absolute has been made by the party to whom it was granted, then, at any time after the expiration of three months from the earliest date on which that party could have made such an application, the party against whom it was granted may make an application to the court, and on that application the court may exercise any of the powers mentioned in paragraphs (a) to (d) of subsection (1) above.35.This provision is the descendant of sec 7 of the Matrimonial Causes Act 1860 which provided:“Every Decree for a Divorce shall in the first instance be a Decree Nisi, not to be made absolute till after the Expiration of such Time, not less than Three Months from the pronouncing thereof, as the Court shall by General or Special Order from Time to Time direct; and during that Period any Person shall be at liberty, in such Manner as the Court shall by General or Special Order in that Behalf from Time to Time direct, to show Cause why the said Decree should not be made absolute by reason of the same having been obtained by Collusion or by reason of material Facts not brought before the Court; and, on Cause being so shown, the Court shall deal with the Case by making the Decree absolute, or by reversing the Decree Nisi, or by requiring further Inquiry, or otherwise as Justice may require; and at any Time during the Progress of the Cause or before the Decree is made absolute any Person may give Information to Her Majesty's Proctor of any Matter material to the due Decision of the Case, who may thereupon take such Steps as the Attorney General may deem necessary or expedient; and if from any such Information or otherwise the said Proctor shall suspect that any Parties to the Suit are or have been acting in collusion for the Purpose of obtaining a Divorce contrary to the Justice of the Case, he may, under the Direction of the Attorney General, and by Leave of the Court, intervene in the Suit, alleging such Case of Collusion, and retain Counsel and subpoena Witnesses to prove it; and it shall be lawful for the Court to order the Costs of such Counsel and Witnesses, and otherwise, arising from such Intervention, to be paid by the Parties or such of them as it shall see fit, including a Wife if she have separate Property; and in case the said Proctor shall not thereby be fully satisfied his reasonable Costs, he shall be entitled to charge and be reimbursed the Difference as Part of the Expense of his Office.”936.This provision was not available to a party to the proceedings; it could only be invoked by the Queen’s/King’s Proctor or a member of the public. The First Interim Report of the Committee on Procedure in Matrimonial Causes (the Denning Committee) in 1946 pointed out that the sole object of the hiatus was to enable the King’s Proctor or a member of the public to show cause why the decree should not be made absolute by reason its having been obtained by collusion, or suppression of facts; it was not intended as a test of the petitioner’s morality or to give an opportunity of reconciling the parties.37.Section 9(1) of the 1973 Act makes clear that the showing cause provision is not available to the parties. With the abolition of the impediment of collusion the only ground for impeachment of the decree is that material facts were not brought before the court. A literal reading of the sub-section says that the facts in question must exist at the time that the decree was pronounced10. However, as will be seen, case law says (somewhat illogically in my respectful opinion) that subsequent facts arising after decree nisi are also admissible in determining whether a decree should be rescinded under Route C.38.Sec 9(2) allows a respondent to apply for decree absolute where the petitioner has not done so. The respondent may do so, in the familiar phrase, three months plus six weeks plus one day after decree nisi. A formal application must be made: r. 7.33(2)(c)(i). The court will need to be satisfied of the various matters mentioned in r.7.32(2) i.e. that there is no challenge to the decree pending and it must be given the following information, pursuant to r.7.33(3), where the application is made more than 12 months after the making of decree nisi:“(a)  why the application has not been made earlier;(b)  whether the applicant and respondent have lived together since the decree nisi or the conditional order was made, and, if so, between what dates;(c)  if the applicant is female, whether she has given birth to a child since the decree nisi or the conditional order was made and whether it is alleged that the child is or may be a child of the family;(d)  if the respondent is female, whether the applicant has reason to believe that she has given birth to a child since the decree nisi or the conditional order was made and whether it is alleged that the child is or may be a child of the family.”Rule 7.33(4) empowers the court to require the applicant to file an affidavit verifying the explanation or to verify the explanation with a statement of truth; and to “make such order on the application as it thinks fit”. 39.The terms of the rule make clear that when determining an application under sec 9(2) the court has a wide discretion. However, it is obvious that this is a structured form of discretion, where its exercise is governed by principles which accord priority and greater weight to some factors over others. A judge exercising such a discretion will err in law if he or she does not act in accordance with the principles which govern that exercise: see AIC Ltd v Federal Airports Authority of Nigeria [2022] UKSC 16 at [37].40.In Savage v Savage [1982] 3 All ER 49, according to the headnote, in April 1977, after nine years of marriage, the wife filed a petition for divorce on the ground that the husband's behaviour was such that she could not reasonably be expected to live with him. Her fairly anodyne petition was undefended and on 21 May 1977 she was granted a decree nisi under the special procedure. After the decree the husband attempted a reconciliation and in June or July 1977 the wife agreed to his return to the matrimonial home because she wished to give him an opportunity to change his behaviour as he had promised and because she thought his return would benefit the children. The wife's evidence was that all was well for the first five or six months of the reconciliation but that thereafter the husband's behaviour deteriorated and the reconciliation came to an end. However, the parties continued to cohabit and have sexual relations for some 3½ years until February 1981 when, after a single violent incident, the husband left the matrimonial home saying the marriage was over. In June 1981, more than 12 months after the grant of the decree nisi, the wife made an application for the decree to be made absolute. The husband did not oppose the application and consented to a rescission of the decree nisi if the court should refuse to make it absolute. At the hearing of the application the wife submitted that, although more than 12 months had elapsed since the decree nisi, the court should exercise its discretion to make the decree absolute because (i) at the date of the application the marriage had broken down because of the husband's behaviour, (ii) the period of reconciliation after the decree nisi had lasted only five or six months and (iii) in all the circumstances it would be wrong to rescind the decree nisi and require the wife to present a fresh petition.41.Wood J refused the application and rescinded the decree nisi. He accepted the submissions made on behalf of the Queen’s Proctor, which were (at 52c):“Counsel for the Queen's Proctor submitted that public policy must play a large part in the decision which the court is asked to reach. He stressed that reconciliation was to be encouraged and that that was shown by the provisions of s 2 of the Matrimonial Causes Act 1973 and also by the fact that a decree absolute could be sought at any time up to 12 months from decree nisi. He submitted, however, that it was wrong that reconciliation, once achieved, should be continued with the threat of a decree nisi hanging over the head of the respondent to the suit. Encouragement should be given to the parties to agree to rescind the decree under r 64 of the Matrimonial Causes Rules 1977. His second main submission was that a stale decree nisi should not be given new life, especially when a prolonged cohabitation had taken place since it was pronounced. The test he proposed was whether the inference drawn by the court originally from the facts that 'the petitioner cannot reasonably be expected to live with the respondent' was still justified in the light of subsequent events.”And went on to say at 52f –53a:“I am quite satisfied that at the present time this marriage has irretrievably broken down and that the husband has behaved in such a way that the wife cannot reasonably be expected to live with him, but one of the main issues in the exercise of this discretionary jurisdiction is whether the original decree nisi was pronounced on sound evidence and on sound inferences to be drawn from such evidence. The final phrase of s 1(2)(b) of the 197 3 Act is too often overlooked. It is an essential factor.…All the factors which I have mentioned above lead me to the inevitable conclusion that the inference originally drawn under the special procedure, that the wife could not reasonably be expected to live with the husband, was the wrong inference, looked at in the light of all the circumstances now known.”Although counsel for the Queen’s Proctor implied that the key question was whether the finding that “the petitioner cannot reasonably be expected to live with the respondent” was