Reflection And Reconciliation During Divorce

The introduction of the Divorce, Dissolution and Separation Act 2020 in April 2022 offered, for the first time, the ability to divorce on a no-fault basis.  The overhaul of legislation that had been in place since 1973 provided a structured timeframe for the progression of proceedings though did make the statutory divorce process longer than previously.  Divorce proceedings now take at least 26 weeks.  There must be a minimum 20-week period between the issue of the divorce application and the pronouncement of Conditional Order, and a minimum of 6 weeks between the Conditional Order and the application for the Final Order, which divorces a couple.

Previous aborted attempts to overhaul marital legislation had considered the inclusion of a statutory period to encourage consideration of reconciliation; the Divorce, Dissolution and Separation Act finally brought the principle of a fixed period to fruition with the 20-week wait. Prior to this (and still enshrined in the Matrimonial Causes Act 1973 s6(2)) was, and is, the more general ability to pause proceedings to allow attempts at reconciliation:

“If at any stage of proceedings for a divorce order it appears to the court that there is a reasonable possibility of a reconciliation between the parties to the marriage, the court may adjourn the proceedings for such period as it thinks fit to enable attempts to be made to effect such a reconciliation.”

The now 20-week period between application for divorce and Conditional Order is expressly designed to encourage a couple to reflect upon their circumstances and whether they really want to divorce. This is particularly so when application for divorce is now made online and is frighteningly easy.  For the impulsive among us, it is tempting to – quite literally – push a button to start the process of ending a marriage after a late night row.

The majority of divorcing couples usually agree on pursuing proceedings to a conclusion at the point the process is started.  However, there are couples who will use the allotted time to continue the dialogue and perhaps even rekindle old feelings as the dust settles after a difficult period.  Indeed, I have had one client in recent months (and admittedly it is only one amongst many since the new legislation) who did precisely that.  The grace period after their initial application allowed the couple to talk with each other in a more profound and honest way than they had ever done before, and both agreed to pause divorce proceedings to explore reconciliation with therapeutic support.  It is precisely this for which the 20 weeks was designed.

The Family Procedure Rules r17.9(5) require that where there has been a delay of more than 12 months between pronouncement of Conditional Order (previously Decree Nisi) and Final Order (previously Decree Absolute), the court require explanation of the reason for delay.  Ordinarily this requires confirmation that a couple have not cohabited or had a child together during that period.  As a matter of good practice, it is also often confirmed that the couple have not reconciled.  Lawyers will advise caution before applying where there has been a period of reconciliation because this has in the past prevented application for Final Order/Decree Absolute and a couple may be required to start the proceedings afresh.

The recent judgment in HK v SS [2025] EWFC 5 (B) considered whether a couple – divorcing under the new no-fault legislation – could conclude divorce proceedings after a 15 month reconciliation during those proceedings.  The couple married in 2011 and filed for divorce in May 2022; obtained Conditional Order in October 2022; reconciled in March 2023; before separating finally in June 2024.  In August 2024 application was made for Final Order.  It was acknowledged that there was a lack of guidance as to how courts should exercise discretion when a couple have reconciled for a significant period and the case was referred up to HHJ Simmons, National Lead Judge for Divorce.

He considered that the 2022 legislation had brought in changes that were intended to make the divorce process less challenging and not tie couples into an unhappy broken marriage.  The question before the court was for what period should reconciliation be allowed before it invalidates the original statement made by the couple at the beginning of proceedings that the marriage has broken down.  HHJ Simmons noted that reconciliation can take time to explore and during that time the original basis for the divorce still stands.

Referring to earlier cases that had also weighed this issue, HHJ Simmons considered that a period of up to two years to explore reconciliation was not unreasonable and should not be a bar to a later application for Final Order if the reconciliation has been unsuccessful.  The judge added that any period over two years may amount to evidence that the marriage has not irretrievably broken down and that reconciliation for such a long period could amount to a material change in circumstances that invalidates the basis upon which the Conditional Order was made. If so, this would require the couple to start divorce proceedings afresh.

Each case of course turns on its facts and the court can exercise wide discretion, but the judgment does seek to remove what HHJ Simmonds termed an artificial [12-month] deadline for a couple to explore reconciliation.  The judgment should be seen as an extension of a grace period to try and encourage a couple to reflect upon and reconsider the state of their marriage before the final press of a button.