The national lead judge on divorce has given guidance on whether a final order should be made when parties have reconciled for more than a year following the granting of a conditional order.
Ruling in HK v SS, His Honour Judge Simmonds said any period of reconciliation 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’.
The parties in the case married in 2011. The applicant, HK, issued a sole divorce application in May 2022 on the ground that the marriage had broken down irretrievably before applying for a conditional order in September 2022 which was granted the following month. Neither party applied for the final order. The couple reconciled in March 2023 but separated again in June 2024. In August 2024, the applicant applied for the conditional order to be made final. Both wished the final order to be made.
The matter was referred to the national lead judge on divorce as ‘there as a lack of guidance as to how the court should exercise its discretion when parties had reconciled for a significant period’ under the Divorce, Dissolution and Separation Act 2020 (DDSA), which came into force in 2022 and amended the Matrimonial Causes Act 1973.
In a nine-page judgment, the judge said the case before him highlighted that ‘an attempted reconciliation takes time’ and parties ‘should be permitted that time’.
‘This case highlights that parties need time to reflect. They should not feel the pressure of an artificially imposed court timetable,’ he added. ‘The parties could attempt to reconcile for just under a year between conditional and final order without any enquiry from the court. Reconciliation may be gradual, and time should be allowed, adopting the words of Wood J, to allow any attempted reconciliation to “cement in”.
‘Prior to the DDSA one of the facts to prove the marriage had broken down irretrievably was that the parties had been separated for two years and the other party consented. In my judgment that further supports the argument that two years is a reasonable period to allow parties space and time to decide their future and decide if they wished to remain separated.’
Finding the parties should be entitled to apply for a final order, the judge said there was a ‘wide discretion’, but any period of reconciliation 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’.
