David Burles, instructed by Belmont & Lowe, representing the respondent wife, successfully argued that a decree nisi pronounced in 2012 should be rescinded on the ground of a material change of circumstance in RN v DA [2023] EWFC 255. The judgment marks what appears to be the first application of the important recent Court of Appeal decision in Cazalet v Abu-Zalaf [2023] EWCA Civ 1065.

The applicant husband sought to have the 2012 decree made absolute. It was the wife’s case that this should be refused and the 2012 decree rescinded  as between its pronouncement and the present application, the parties reconciled and did not truly separate until 2020. The stakes were very high and, during the period 2012 – 2020 the husband generated huge wealth. In 2012 the parties had limited assets but since 2012 the judge noted that the husband had built up assets of £100m from his work in private equity.  

Having heard evidence from the parties and supporting witnesses the court broadly rejected the husband’s case and made many detailed findings of fact. Although the judge accepted that the parties did occupy separate properties from 2013 the court also found that the parties had lived together for some months after their initial separation and that after that time there were significant periods up until February 2020 during which they shared a common life including holidaying together, spending time in each other’s homes, socialising together as a couple as well as personal intimacy.

Against that background it was held that there had consequently been a material change of circumstances that invalidated the bases upon which the decree nisi had been made. The original conclusions – namely that it was unreasonable to expect the applicant to live with the respondent and that the marriage had irretrievably broken down - were no longer valid in light of the subsequent events. 

In line with the Court of Appeal guidance, this judgment makes clear that though a finding that the parties had reconciled would ‘likely lead to the conclusion’ that the decree nisi would be rescinded, it is not determinative. The court must apply the ‘structured discretion’ referred to in Cazalet – understood by the judge to mean ‘to mean an approach that considers the r.7.32 and r.7.33 FPR 2010 factors, having made such findings of fact as are necessary, and then determines whether or how to exercise its discretion’. Having done so, in this instance the judge refused to make the decree absolute rescinded the 2012 Decree Nisi and directed the divorce to proceed on the wife’s 2023 petition. These decisions will of course now inform the financial proceedings and, in particular, the application of the sharing principle to the wealth created after 2012.