In England and Wales couples seeking a divorce must wait at least 26 weeks between the initial application for divorce and obtaining a final order. This includes time for the couple to reflect on the decision to divorce, and in appropriate cases to attempt a reconciliation.
But what happens if, following the divorce application the couple get back together for a significant length of time – well beyond the 26-week waiting period – but subsequently separate again? Does the initial divorce application still stand? Or do they have to make a fresh application? The procedure under the Divorce Dissolution and Separation Act 2020 which ushered in no-fault divorce in England and Wales lacked clarity on this point, and in January 2025 a Family Court decision provided much-needed guidance. The judgment illustrates how wide the court’s discretion is in this area and reveals a willingness to exercise this discretion in a practical way.
We discuss the case below.
What happened in HK and SS (2025)?
The parties in the case of HK and SS (2025) had been married for 11 years when, in May 2022 the applicant issued a sole application for divorce. In line with the no-fault divorce rules in force at that time the sole ground for divorce mentioned in the application was that the marriage has broken down irretrievably.
The application was not contested, and a conditional order of divorce was made in September 2022 following the mandatory waiting period of 26 weeks.
Under the rules the applicant could have applied for a final order six weeks later at the beginning of December 2022. Instead, in March 2023 the couple got back together – only to separate again in June 2024. The reconciliation had lasted 15 months.
In August 2024 the applicant applied for the conditional order from September 2022 to be made final. When it came to be considered by the court the District Judge requested further information from the applicant, and received the following from the applicant’s solicitor:
“..the parties reconciled in March 2023, but the marriage sadly broke down again around 2 months ago”.
Unsure of how to proceed the District Judge referred the matter to HHJ Simmonds the National Lead Judge for divorce for a definitive ruling. Judge Simmonds had to decide:
- Whether a conditional order should be made final where parties have reconciled for a period of 15 months following the granting of the conditional order
- If not, whether the conditional order should be rescinded, and the divorce application be dismissed.
- Generally, how the Court should exercise its discretion under the rules
What do the rules say?
HHJ Simmonds reviewed the relevant law extensively, highlighting in particular Part 7 Rule 19(5) of the Family Procedure Rules. The rule states that where an applicant seeks to make a conditional order final, but more than 12 months have elapsed since the conditional order was made he or she must provide a written explanation as to why the application was not made earlier. At that point the court has the discretion to make ‘such order as it sees fit’.
Decision
HHJ Simmonds acknowledged at the outset of his judgment that if he were to refuse the application for a final order the conditional order would have to be reversed – a step he would not take lightly.
He made clear his view that parties should not be dissuaded from reconciling or attempting to reconcile. The question the court should ask itself is whether some fundamental change in circumstances has invalidated the basis on which the conditional order was made in the first place. To put it another way, is it still accurate to say that the marriage has irretrievably broken down?
HHJ Simmonds indicated that the case highlights that an attempted reconciliation takes time, and parties should be permitted that time. During that attempt the original basis for the divorce still stands.
The applicant was therefore entitled to apply for the final order.
Comment
This guidance, coming as it does from the national lead judge for divorce, carries considerable weight. It provides welcome clarification that the courts generally will exercise their discretion in this area in a practical way. As the judge noted, if he refused the order it would be open to the parties to immediately submit a fresh divorce application.
The priority appears to be to allow couples the time and space to explore the possibility of reconciliation when this is a realistic option. Generally, a reconciliation that lasts less than two years won’t operate as a bar to a final order, provided there’s a clear explanation provided to the court as to the reasons for delay in the application. A close reading of HHJ Simmonds remarks would suggest that applications for a final order following a reconciliation of more than two years may result in a finding that the original basis for the conditional order no longer exists and that a fresh divorce application may have to be made.