TO DIVORCE, OR NOT TO DIVORCE: THAT IS THE QUESTION
News and gossip columns of late have been rife with stories of celebrity divorces, separations and possible reconciliations, the most recent being that of Brad Pitt and Angelina Jolie (‘Brangelina’). The latest rumours suggest they may be attempting reconciliation. Of course, their proceedings are being conducted in Los Angeles but it has caused us to ponder the issues they would need to address in these circumstances if they were getting divorced here in England & Wales.
The first question must be: How can the divorce process be stopped once commenced? The answer very much depends on what stage the proceedings have reached when the decision to reconcile is taken.
At this juncture, we must pause to dispel a couple of family law myths repeatedly promoted by the media: 1. the pronouncement of a decree nisi does NOT bestow divorce; and 2. there is no such a thing as a ‘quickie divorce’; fast as he was in his day, not even Ryan Giggs can avoid the prescribed minimum period of six weeks and one day which has to pass AFTER a decree nisi pronouncement BEFORE decree absolute can be granted. So, it is, that the decree absolute is the last part of the divorce procedure and it is this decree (NOT the decree nisi) that brings a marriage to an end.
Therefore, if the decision to reconcile is made BEFORE decree absolute has been granted there is no need to take any action to stop the divorce in the event of reconciliation. The court will not advance the proceedings unless one of the parties (usually the petitioner) takes the necessary steps to proceed with it.
AFTER the decree absolute has been granted, save for a procedural irregularity, it cannot be set aside and it is then too late to avoid divorce.
If the reconciliation proves to be successful can the proceedings be withdrawn? Once again, timing is everything.
If the decree nisi is yet to be pronounced then the parties can apply by consent to have the divorce petition dismissed. Once done it is as if the proceedings had never been issued.
If the decree nisi has already been pronounced then it is not quite so simple, as the parties will also need to ensure the decree nisi is rescinded.
There is a little-used provision in the law that enables the court to adjourn divorce proceedings for such period as it thinks fit if at any stage it appears there is a reasonable prospect of reconciliation and so enable those attempts to be made. This might be useful in defended proceedings which in practice are rare but occur when a divorce petition is issued and either the other party does not accept the marriage has irretrievably broken down (see our previous post Owens v Owens – a child’s perspective) or does not accept the grounds upon which the petition is based. However, most divorce petitions issued today proceed on an undefended basis.
Should the proceedings be withdrawn in these circumstances? In brief, to avoid any bar to the issue of future divorce proceedings the existing proceedings should be withdrawn. Failing that, if you sadly find yourself once again sat across the desk from a divorce lawyer you must remember to tell them about the previous proceedings.
What if the reconciliation is not successful; does any period of resumed cohabitation affect pre-existing divorce proceedings? The six-month rule applies to all five grounds currently available to any party seeking to prove an irretrievable breakdown of their marriage.
Cohabitation for more than six months after learning of an act of adultery is assumed acceptance and it can no longer be relied on for the purpose of obtaining a divorce. Any period of cohabitation not exceeding six months will be disregarded.
A particular act of unreasonable behaviour can be relied on as long as you do not live with your spouse as man and wife for more than six months after it occurred. This does not, however, prevent the court from looking at the history of your marriage and the cumulative effect of conduct over time.
As for desertion, two years’ separation with consent or five years’ separation, periods of cohabitation of less than six months will not be taken into account, but cannot be counted as part of the period of desertion or separation. Periods of cohabitation in excess of six months serve to break the continuity of the separation.
Finally, how does reconciliation affect any financial application that may have been issued within the divorce proceedings? The simple answer is that dismissal of the divorce proceedings will also serve to dismiss any associated application for financial remedy and frustrate the effectiveness of any final financial order that has been made.
So what of Brangelina? It now looks like the delay in their divorce may in fact be due to complications relating to their financial settlement. If this is true, then perhaps the pre-nuptial agreement they reportedly entered into before they married did not cover every eventuality – a topic for another post on another day perhaps!
The above is only a brief summary of the relevant law. For detailed legal advice on any of the issues raised in this post we recommend you consult with one of our specialist family lawyers on 0161 838 5410 – it’s always good to talk!
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