Law Articles

Understanding the Court's Approach to Divorce Finalisation Delays 10/02/2025

Divorce can be a challenging and emotionally charged process, and sometimes, after a separation, couples may experience a period of reconciliation before deciding to proceed with a divorce. This leads to questions about how long the court should wait before finalising a divorce when there is a significant delay between the granting of a conditional order and the application for a final order. The case of HK v SS [2025] EWFC 5 (B) sheds light on this issue and offers important guidance for both couples and legal professionals regarding the court's approach to divorce delays and the conditions under which a final divorce order can be made.

The Facts of the Case

The case involved a married couple who had been together for 11 years before separating in 2022. The wife (the applicant) filed for divorce on 12 May 2022, and her application for a conditional order (the court’s preliminary approval of the divorce) was submitted on 30 September 2022. The court granted the conditional order on 27 October 2022. According to the law, the applicant could have applied for the final divorce order as early as 9 December 2022. The respondent (the husband) could also have applied for a final order three months later.

However, before proceeding with the final divorce, the couple attempted reconciliation. They reconciled in March 2023 and stayed together for approximately 15 months before separating again in June 2024. Following their second separation, the wife applied for the conditional order to be made final in August 2024.

This timeline raised an important question: Given that more than 12 months had passed since the conditional order was granted, should the final divorce order be allowed to go ahead, or should the court question whether the divorce was still justified after the couple's reconciliation and subsequent separation?

Key Legal Principles in Divorce Proceedings

In divorce law, there are clear guidelines for how long a couple can wait before finalising their divorce. Under the Divorce, Dissolution, and Separation Act (DDSA) 2020, once a conditional order has been granted, the applicant can apply for a final order six weeks later. In practice, this means that after a conditional order, the divorce is almost finalised, but a "final order" (which used to be known as a "decree absolute") legally ends the marriage.

However, if more than a year passes between the conditional order and the application for a final order, the applicant must explain the reason for the delay. The court must then decide whether the delay is reasonable and whether it would still be appropriate to finalise the divorce. If the delay is seen as unreasonable, the court may refuse to grant the final order.

The purpose of this rule is to ensure that people are not rushing into finalising a divorce without fully considering the consequences, especially if there is a possibility of reconciliation.

The Court's Approach to Delay

The question in HK v SS was whether the 15-month reconciliation and subsequent separation were enough to justify a delay in finalising the divorce. Judge Simmonds, who led the case, emphasised that the primary consideration should be whether the original decision to grant a conditional order still held after the reconciliation.

One key factor in the judge's decision was the idea that reconciliation should not be discouraged by a strict court timetable. Reconciliation can take time and, if genuine, should not automatically lead to the rejection of a divorce application. The court recognised that people may need time to decide whether they truly wish to end their marriage, and that a sudden legal timeline could unfairly pressure couples into a final decision.

The judge acknowledged that, under the previous laws, a couple could divorce after living apart for two years with mutual consent. This two-year period allowed for a reasonable window to reconcile, and Judge Simmonds believed that the new law should also allow a similar grace period for reconciliation. Therefore, the judge concluded that the 15-month reconciliation was not an unreasonable long delay and should not bar the finalisation of the divorce.

Evaluating the Impact of Reconciliation

A central issue in HK v SS was whether the reconciliation period invalidated the original claim that the marriage had irretrievably broken down. When a conditional order is granted, the court assumes that the marriage is over and that reconciliation is unlikely. However, when a couple attempts reconciliation, it raises the question of whether the foundation for the conditional order still holds.

Judge Simmonds noted that it is not uncommon for couples to reconcile for a period before ultimately deciding to divorce. Reconciliation can be a complex emotional journey, and a fixed legal timetable might not fully capture the reality of a couple’s situation. The judge emphasised that parties should be encouraged to take time to reflect on their relationship and whether they want to attempt a fresh start together.

This sentiment was echoed in a previous case, Savage v Savage (1982), where the court ruled that reconciliation should be given time to “cement in.” The court in HK v SS was mindful of this precedent and did not want to rush the process, particularly when it was clear that the reconciliation had not been a permanent solution.

Practical Considerations

Another important consideration was the practical reality that, if the application for a final order was rejected, the parties could simply apply for a new divorce. This would lead to further delays, potentially causing more legal and emotional stress. The court wanted to avoid this scenario, recognising that the delay in finalising the divorce did not appear to be unreasonable and was unlikely to change the overall outcome.

The Court's Decision

Ultimately, Judge Simmonds concluded that the divorce should proceed. The 15-month reconciliation was not deemed long enough to invalidate the original reasons for the divorce. The court was satisfied that the marriage had irretrievably broken down, and the decision to grant the final order was in line with the interests of justice.

Guidance for Future Cases

This case sets an important precedent for future divorce applications. It offers clarity on how the court should handle delays between a conditional order and the application for a final order. Specifically:

1. Reconciliation under Two Years: If the reconciliation lasts for under two years, the court will likely allow the final order to proceed, if there is a reasonable explanation for the delay.

2. Reconciliation Over Two Years: If the delay exceeds two years, the court will take a more careful approach. The explanation for the delay must be compelling and reasonable, and the court will consider whether the original grounds for divorce still hold.

Conclusion

The case of HK v SS highlights the complexity of divorce proceedings and the need for flexibility when couples attempt reconciliation. It reminds us that divorce is not just a legal process but an emotional journey that can take different paths for different people. While the court must ensure that divorce is granted only when the marriage is truly over, it also recognises the value of giving couples time to reflect and potentially rebuild their relationship. This case provides important guidance on how the court should balance these considerations in the face of delays and reconciliations.

For further information and advice on this issue, and other family law issues, please contact us for a free initial consultation on 01992 306 616 or 0207 956 2740 or email us.