Divorce: We Separated Then Reconciled – Where Do I Stand?

In this blog, Victoria Nottage, FLiP’s Head of Knowledge and Learning discusses what the legal and financial consequences at the end of a marriage are if you had separated and then reconciled.

What are the legal and financial consequences at the end of a marriage if you had separated and then reconciled?

The Court of Appeal recently considered this in Cazalet v Abu-Zalaf [2023].

Here the parties met in 2001 but did not marry until 2012.  They entered into a pre-nuptial agreement which gave the wife financial provision dependent on the length of the marriage.  They separated in 2013 and the wife applied for divorce.  The first decree of divorce, the Decree Nisi, was granted. The wife issued an application for financial provision following a divorce and this was concluded on the basis of the prenuptial agreement – giving the wife financial provision based on the two years of marriage.

However neither party went on to apply for the final decree of divorce, the Decree Absolute.  The wife says that they had reconciled until the marriage finally broke down in 2020.  The husband admitted that the relationship was ‘rekindled’ but said it was not a marital reconciliation but remained the same type of unhealthy relationship which had led to the granting of the Decree Nisi.

The wife applied to rescind the Decree Nisi with the court considering the quality of the relationship between the parties during the reconciliation to determine whether this affected the basis on which the Decree Nisi was issued, notably that the marriage had irretrievably broken down.  The court decided that it did not.

The wife appealed this decision. In the Court of Appeal the judges said that the question of whether there has been a reconciliation is not to be determined by reference to the judge’s own qualitative assessment of the relationship between the parties, but by reference to objective findings of fact.  Factual issues such as the behaviour of the parties, where they lived, how they managed their lives etc. were all to be taken into account in deciding whether or not there had been a reconciliation. Moylan LJ said the question is whether ‘this marriage’ continued such that it had been wrong to conclude in 2013 that it had irretrievably broken down.

Reconciliation is also a feature of TRNS v TRNK [2023] in which Sir Jonathan Cohen found that there had been material non-disclosure by the husband when negotiating and concluding the parties’ post-nuptial agreement.  In this case, the husband and wife had founded a successful business.  They also individually had separate business interests.  As part of the negotiations, the husband had prepared a voluntary Form E setting out his assets, with around 600 pages of supporting documents.  Heads of terms for the post nuptial agreement were signed on the day they departed on holiday to celebrate their reconciliation.  When they returned, their lawyers drafted the post-nuptial agreement and the wife’s lawyers included wording confirming that the parties were ‘satisfied that they have sufficient knowledge of each other’s financial circumstances and have received sufficient information and documentation about the financial circumstances of the other party to be able to assess the terms and fairness of the terms of this Agreement.’

The starting point of the law on nuptial agreements is the landmark case of Granatino v Radmacher [2010] where the Supreme Court highlighted: ‘What is important is that each party should have all the information that is material to his or her decision’.  As Mostyn J noted in the case of BN v MA [2023] ‘That does not require ‘full and frank disclosure’ it requires only a sufficiency of disclosure to enable a free decision to be made.’ In this case, as recorded in the post nuptial agreement, the accuracy of the financial disclosure was central to the wife’s ability to evaluate its fairness and decide whether to enter and be bound by the agreement.  On the facts, Sir Jonathan Cohen noted that the husband had not provided full and updated disclosure. This amounted to material non-disclosure and as such it affected the validity of the post nuptial agreement.

The final case that fits this theme is HAT v LAT [2023].  Here the parties separated in 1993, agreed a deed of separation which gave the wife a lump sum (which the husband paid) and put in place a clean break.  They both had legal advice but although the husband thought that a consent order (setting out the financial arrangements that the couple had agreed) had been filed with the court, nothing could be found on the solicitors file or court records.

According to wife there was a reconciliation until 1998 and in 1999 (or 2002 according to husband), the husband began to pay the wife a monthly allowance, meet her utility bills, pay for a car, fund education courses and meet her BUPA insurance.  In 2009 he provided the wife with financial assistance of £2.14m to buy a house in Central London, on trust repayable to the children from his second marriage on her death or gifted to her, on his own death.

In March 2022, the husband told the wife that all payments would cease and the house should be sold.  The first was open to him, the second was legally not.

With no consent order recording the financial arrangements that the couple had agreed being found, and there being no limitation period on financial claims arising from marriage, the wife applied for financial provision.  The court ordered maintenance pending suit and a legal service payments order (LSPO) in favour of the wife enabling her to pay the legal fees associated with pursuing her case.

It is clear from these cases, that where the parties do not seek to make an agreement reached on separation into a binding court order and then go on to act in a way that is different from that separation agreement, the English court has the widest discretion to take into account all the circumstances of the case.  For couples who want to achieve certainty, it is always best to obtain a court order.

Victoria leads the Knowledge Management and Professional Development aspects of the firm. She is a solicitor, family mediator, collaboratively trained practitioner and a coach. Victoria is passionate about FLiP’s holistic approach to client service, which brings together excellence in legal services with leading mediation and counselling practices.  Victoria has always been committed to helping clients resolve their disputes in a way that acknowledges and seeks to manage the greater impact of family separation, not only in terms of the emotional and mental health of the parties but also how it affects wider members of the family and especially children.