Divorce can go ahead for couple who had reconciled

The one ground for divorce is that the marriage has broken down irretrievably. And irretrievable breakdown obviously entails the parties no longer living together as husband and wife.

But what if there is a reconciliation after the divorce is applied for? Surely, that will mean that the marriage has not in fact broken down, and the parties are therefore not entitled to a divorce?

Well, that is not necessarily so, as demonstrated by a recent case that took place in the Family Court at Bournemouth.

Before we look at the case we first need to examine the relevant law.

Divorce law in England and Wales has in fact long included features aimed at encouraging, or at least not discouraging, the parties to attempt a reconciliation.

For example, the law specifically requires the legal representative acting for an applicant for a divorce order to certify whether they have discussed with the applicant the possibility of reconciliation, and given them the names and addresses of persons qualified to help effect a reconciliation between parties to a marriage who have become estranged.

And a 20-week ‘period for reflection’ must take place between the divorce application and any application for the conditional divorce order. This period is designed to give the applicant time to reflect and consider whether they do indeed wish to bring their marriage to an end.

Turning to the recent case, the relevant facts were as follows.

The marriage broke down in 2022, and in May that year the applicant applied for a divorce. Then, at the end of September, they applied for the conditional order, which was granted in October 2022.

They were entitled to apply for the final divorce order in December, but did not do so. In March 2023 a reconciliation took place. It lasted until June 2024, a period of some 15 months.

In August 2024 the applicant applied for the conditional order to be made final, and the question arose as to whether they were still entitled to a divorce.

The law does envisage the possibility of a delay between the conditional order and the application for the final order. It states that if more than 12 months have elapsed after the making of the conditional order, an application for the final order must include or be accompanied by an explanation in writing stating why the application has not been made earlier, and where this occurs, the court may make such order as it thinks fit. In other words, the court has a discretion whether or not to make the divorce final.

The judge hearing the case explained that he had 3 questions to answer:

1. Whether a conditional order should be made final where the parties have reconciled for a period of 15 months following the granting of the conditional order;

2. If not, whether the conditional order should be rescinded, and the divorce application be dismissed; and

3. Generally, how the Court should exercise its discretion.

Referring to the old divorce law which allowed a divorce by consent after a period of two years’ separation, the judge felt that any attempted reconciliation for under two years should be seen as an attempt at reconciliation but not a bar to the court allowing a final order to be made. Parties need time to reflect, and should not feel the pressure of an artificially imposed court timetable.

Accordingly, the applicant was entitled to apply for the final order.

The judge did also point out that if he refused the application either party would be able to issue a new divorce application the following day.

You can read the full report of the case here.

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