Family Court Rescinds Decree Nisi in Landmark Case Under Matrimonial Causes Act 1973

Citation: [2023] EWFC 255 (B)
Judgment on


In the noteworthy case [2023] EWFC 255 (B), the Family Court at Oxford presided over a disputed application concerning the rescission of a decree nisi issued in a divorce petition and subsequent related applications, including a challenge to the husband’s application for decree absolute and financial remedy proceedings. The case delves into the nuances of divorce law under the Matrimonial Causes Act 1973, the application of legal principles concerning the reconciliation of parties post-decree nisi, and the discretion provided to the courts in granting or rescinding decrees.

Key Facts

The matter involves parties RN (husband) and DA (wife) who disputed the status of their marriage post-decree nisi pronounced on 18 September 2012. Central to the contention was whether there had been a material change in circumstances in the form of a reconciliation that invalidated the decree nisi, justifying its rescission. The court scrutinized their post-nisi conduct, including shared holidays, family events, and the existence of a sexual relationship, to determine whether a common life was shared despite living in separate houses, which would impact the financial considerations given the husband’s substantial increase in wealth since the decree.

The court applied numerous legal principles, particularly focusing on:

  • Discretion Under the Matrimonial Causes Act 1973: Section 9(2) allows the court discretion in making the decree absolute or rescinding the decree nisi, taking into consideration whether the parties have lived together post-decree nisi.
  • Definition of Living Together: Living together is interpreted as living in the same household and sharing a common life (MCA 1973 s2(6)).
  • Test for Rescission: As established in Cazalet v Abu-Zalaf [2023] EWCA Civ 1065 and NP v TP (Divorce) [2022] EWFC 78, a pivotal question is whether there has been a “new event or material change of circumstances which invalidates the basis, or fundamental assumption, upon which the order was made.”

The judge also took into account the factors under FPR 7.32, particularly the explanation for the delay in applying for the decree absolute, whether the parties have lived together, and if a child has been born to the family after the decree nisi.


The court, in this instance, concluded that:

  • There was a material change in the couple’s circumstances post-decree nisi, as they had reconciled and shared a common life until March 2013.
  • Their actions from 2013 to February 2020, although not living together, constituted a shared common life reflective of a marital relationship, which invalidated the fundamental assumptions upon which the decree nisi was issued.
  • The Court used its discretion not to make the decree absolute and instead rescinded the decree nisi, directing that the divorce and financial remedy application proceed on the wife’s 2023 cross-petition.


The case [2023] EWFC 255 (B) clarified that a formal living arrangement post-decree nisi is not the sole indicator of a marital relationship’s continuity. The court emphasizes the need for a holistic evaluation of the parties’ post-decree nisi conduct, gauging if a common marital life persisted. This assessment bears significant implications for financial remedy proceedings, stating that even a legally separated status does not preclude the existence of a marriage in practice, with substantial ramifications for financial settlements. The court’s decision to rescind the decree nisi based on the particular circumstances serves as a pivotal reminder of the court’s broad discretion in family law matters and the complexities involving reconciliation and divorce proceedings.

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