Two sections of the Matrimonial Causes Act (Chapter 282) allow a decree nisi to be undone, and a third operates on intervention.
Section 62 — where the parties have reconciled
Notwithstanding anything in this Division, where a decree nisi has been made in proceedings for a decree of dissolution, the Court may, at any time before the decree becomes absolute, on the application of either of the parties, rescind the decree on the ground that the parties to the marriage have become reconciled.
Either party may apply — not only the petitioner.
At any time before absolute. After the decree becomes absolute the marriage has ended, and section 64 provides that no appeal lies from a decree of dissolution or nullity of a voidable marriage once absolute.
Only for dissolution. Section 62 refers to proceedings for a decree of dissolution. It does not mention nullity of a voidable marriage, the other decree made nisi under section 58.
Reconciliation is the ground. This is the provision that gives practical effect to the reconciliation policy in Part III — the possibility survives right up to the moment the decree becomes absolute.
The parties must apply. A couple who reconcile and do nothing will find the decree becomes absolute by force of section 60 at the end of the three months — and they will be divorced.
They would then have to marry each other again, which section 34 permits.
Note that an application under section 62 is an “appeal” for the purposes of section 60(1)(b), so making it holds the decree in the nisi stage until determined.
Section 63 — miscarriage of justice
Where a decree nisi has been made but has not become absolute, if the Court, on the application of a party to the proceedings, is satisfied that there has been a miscarriage of justice by reason of fraud, perjury, suppression of evidence or any other circumstance, it may rescind the decree and, if it thinks fit, order that the proceedings be reheard.
| Ground | Typical situation |
|---|---|
| Fraud | Leave to petition within three years obtained by misrepresentation; a concealed bar |
| Perjury | False evidence about the ground, about condonation, or about the children |
| Suppression of evidence | Concealing the petitioner’s own adultery, a reconciliation, or assets relevant to property orders |
| Any other circumstance | A residual category — whatever produced the miscarriage |
The words are wide. “Or any other circumstance” means the three named grounds are examples. What must be established is a miscarriage of justice.
Rehearing is discretionary. The Court may rescind, and if it thinks fit order a rehearing. Rescission without a rehearing leaves the petition standing to be dealt with afresh.
Like section 62, an application under section 63 is an “appeal” within section 60(1)(b), so it prevents the decree becoming absolute meanwhile.
Section 69 — rescission on intervention
Section 69 provides for rescission of a decree nisi on intervention — that is, where a person has intervened under Part VI.
Section 28 makes collusion with intent to cause a perversion of justice an absolute bar on every ground. But collusion is by its nature concealed from the court.
Part VI is the answer. Section 65 allows the Principal Legal Adviser to intervene where the Court requests it; section 66 allows intervention in other cases; section 68 allows intervention by other persons; and section 69 allows the decree nisi to be rescinded as a result.
An intervention is also an “appeal” for section 60(1)(a), so it holds the decree open.
Why the nisi period exists
Section 58 requires every decree of dissolution, and of nullity of a voidable marriage, to be nisi in the first instance. The three rescission provisions are what that period is for.
Once the decree is absolute:
- Section 64 — no appeal lies;
- Section 34 — either party may remarry;
- Section 61 — a certificate is available to any person as evidence of the fact.
A third party may by then have relied on the divorce — by marrying one of the parties — and the law will not unwind that.
So anything wrong with the decree must be raised before it becomes absolute. Where more time is needed, section 60(4)(a) allows the Court to extend the period having regard to the possibility of an appeal.
Sources
- Matrimonial Causes Act (Chapter 282) — ss 10, 27–29, 31, 34, 58–64, 65–71
Before relying on anything here, read the current text of the Marriage Act (Chapter 280) and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.