The recent case of HK v SS offers valuable lessons on how courts handle divorces complicated by reconciliation attempts and the delayed application for a final order. This case is particularly notable because it explores the court's discretion under the Divorce, Dissolution, and Separation Act 2020 (DDSA 2020) when parties reconcile after a conditional order is granted but separate again.

Case Background

The parties, married for 11 years, separated in 2022, and the wife filed for divorce under the DDSA 2020. The process progressed smoothly, with a conditional order granted in October 2022. However, instead of applying for a final order, the parties reconciled in March 2023, resuming life together for 15 months before separating again in June 2024. The wife applied for the conditional order to be made final in August 2024.

The case raised an important question: How should the court exercise its discretion when reconciliation occurs between the conditional order and the application for a final order?

Legal Framework for Divorce in England

The Divorce, Dissolution, and Separation Act 2020 reformed divorce law in England, introducing "no-fault divorce" and simplifying the process.

1. Conditional Order:
   After 20 weeks of filing, the applicant can apply for a conditional order. The court ensures procedural compliance before granting it.
2. Final Order:
   The final order can be applied for six weeks after the conditional order. If over 12 months pass, the applicant must provide an explanation for the delay.
3. Court’s Discretion:
   The court has discretion to refuse the final order if subsequent events invalidate the original basis for divorce (e.g., long-term reconciliation).

Court’s Decision in HK v SS

1. Reconciliation vs. Irretrievable Breakdown:
   The court held that reconciliation lasting under two years does not automatically negate the irretrievable breakdown of marriage declared at the conditional order stage. Judge Simmonds emphasised that reconciliation is a gradual process that parties should be encouraged to attempt without fear of invalidating the divorce application.
2. Guidance for Couples:
   • Reconciliations under two years generally do not prevent final orders unless there is clear evidence that the marriage has been fully repaired.
   • Reconciliations beyond two years could be viewed as evidence that the marriage no longer meets the criteria for irretrievable breakdown.
3. Avoid a 'Computer Says No' approach:
   Refusing the final order would serve little purpose since either party could initiate new divorce proceedings immediately. The court prioritised practicality over procedural rigidity.

Key Lessons for Family Lawyers

1. Importance of Timing:
   Delays in applying for final orders after conditional orders should be accompanied by clear explanations, particularly when reconciliation occurs.
2. Encouragement of Reconciliation:
   The judgment highlights a balanced approach, allowing couples to attempt reconciliation without the looming threat of losing progress in divorce proceedings.
3. Wide Discretion of Courts:
   Courts retain broad discretion to address unique circumstances, ensuring that the process remains fair and reflective of the parties’ realities.

Conclusion

HK v SS reinforces the flexibility and understanding of England’s no-fault divorce framework. It showcases how courts prioritise fairness and practicality, even in cases complicated by reconciliation. For practitioners, the case underscores the importance of advising clients about the implications of reconciliation and the procedural nuances of the Divorce, Dissolution, and Separation Act 2020.