EWCA recission of decree nisi opens way for wife to increase financial remedy

Olga Cazalet and Abu-Zalaf began their relationship in July 2001 but did not marry until 1 June 2012, having signed a pre-nuptial agreement two days before the wedding. That agreement gave Cazalet a level of financial provision upon divorce that increased depending on the length of the marriage, as measured in full years from the date of the ceremony to the date of separation. In the event, the couple separated in August 2013 and Cazalet filed a divorce petition in September 2013 on grounds of so-called unreasonable behaviour and irretrievable breakdown of the marriage.

Abu-Zalaf did not defend the divorce. Decree nisi was pronounced in November 2013, stating that the marriage should be dissolved unless 'sufficient cause' be shown to the court within six weeks.

Cazalet had issued financial proceedings simultaneously with the divorce petition and Abu-Zalaf responded by applying for a notice seeking to uphold the terms of the pre-nuptial agreement. In June 2014, these claims were concluded on the basis of the pre-nuptial agreement, with a financial remedy order making provision for the wife on the basis of a marriage of less than two years.

However, neither party sought to make the decree absolute. For the next six years they discussed the terms of a possible post-nuptial agreement, although no agreement was actually concluded.

In November 2021, Cazalet applied to rescind the decree nisi and dismiss the divorce petition under s.31F(6) of the Matrimonial and Family Proceedings Act 1984, claiming that they had reconciled in November 2014 for a period that lasted until March 2020. This application was opposed by Abu-Zalaf, who made a cross-application for the decree to be made absolute. In 2022, the England and Wales High Court (EWHC) rejected Cazalet’s application. She appealed.

The England and Wales Court of Appeal (EWCA) has now reversed the EWHC decision, ruling that it had applied the wrong test. The EWHC had required Cazalet to prove both that there had been a marital reconciliation and that it would be contrary to the interests of justice not to rescind the decree. Giving judgment, the EWCA said the decree nisi should be set aside if there had been 'a new event or material change of circumstances which invalidates the basis, or fundamental assumption, upon which the order was made'. It considered the alleged reconciliation to be such an event.

The EWCA duly allowed Cazalet's appeal, rescinded the decree nisi and dismissed Abu-Zalaf's petition. The 2014 financial remedy order has never been implemented, partly because it is not enforceable until the granting of decree absolute and partly because Abu-Zalaf had continued to maintain Cazalet and their children at a standard significantly above that provided under the terms of the order.

With the setting aside of that order, Cazalet's intention is to file a fresh divorce application. This will lead the marriage to be treated as lasting for eight years rather than only one, thus significantly increasing the level of financial provision to which she would be entitled under the couple's original pre-nuptial agreement (Cazalet v Abu-Zalaf, 2023 EWCA Civ 1065).

Sources

• BAILII