Last July I filed for divorce, it was quite smooth and got to nisci in November 2006. My solicitor at the time would not file for absolute until the fiances were sorted out. Christmas came and went with a reconsilation of sorts with my ex. Three nights spent together and we stupidly agreed to give it all another go. Both of us agreed to recind the nisci and try a reconciliation. I moved back into the marital home in March 2007. Four weeks later we both agreed it was the wrong thing to do. Since then we have slept in seperate beds etc etc.Can I still petition with divorce on my original grounds of two year separation or do I now have to change the grounds given that we had a few nights of togetherness which I might add someone on a holiday romance would also do?
This is a hard lesson learnt but nether the less one that needs sorting. I do not want to start racking up huge solicitors bills as we have both spent enough already. So any advice gained is a bonus.
The general rule with desertion is that a period of cohabitation not exceeding six months is disregarded, although the cohabitation cannot count as part of the two year period ( Matrimonial Causes Act 1973 s 2(5) but I'm not clear whether the same rule applies to separation ; but as desertion and separation are similar I wondered whether the same rule could apply by analogy. The MCA says that the period of two years's separation must immediately precede the presentation of the petition - but then again it is possible for people to live separate lives under the same roof.
In any event if you have rescinded the Decree Nisi you will have to start all over again. That will involve some court fees at the least but if your finances were more or less sorted and there is no change, it need not cost you a packet. I do not think there is anything to prevent a couple making an amicable agreement to divorce where one of the recognised grounds exists.
I was advised legally that if you lived under the same roof but had seperate lives and seperate beds that it was a very difficult thing to prove to the courts. You would have to do things like pay your council tax seperate, all shopping bills must be seperate etc etc but still a difficult thing to prove.
In my honest opinion I think that WOW you gave it a go and bless you it didn't work but at least now you know for sure that what you are doing is right.
I believe you could still go ahead with your divorce on whatever basis you both agree on be it desertion, unreasonable behaviour (isn't it a shame you can't just say sorry your honour we simply grew apart!! Dont they make it all sound so shabby!). Just keep it all amicable and TALK to each other & keep talking, sort out finances amicably because there is a wonderful life to grab at the end of it.......please dont go down the route of well he's got this much so I want that much and then end up spending it all on legals, just split it, wave bye bye to each other and go out into that fabulous world and LIVE LIVE LIVE!!!!!!
Mmm-hmm! Strong is the Force in this one. Maybe talk like this you will after a long divorce... (needs Yoda voice)
Seriously though, you have lost the chance of the "2 years' separation" divorce because the 2 years have to be continuous and immediately precede the Petition being filed.
Are you sure you actually got the Decree Nisi rescinded? Or did you just put everything on ice for a while? If you got it rescinded you will have to start again, new petition fee etc, different grounds.
But well done for trying, such a pity it didn't gell.
My sentiments exactly for goodness sakes 4 weeks!!! I was gonna send her a PM in case I was looked upon as being "terribly fraudulent" trust you to spill it out in public ha ha ha who the hell is gonna know???
The only problem is if they have ricinded on the Nisci already????
You should check with the Court whether the Decree Nisi was actually rescinded. It would take a formal application to the court to rescind, or withdraw the petition. I think, from what you are saying, that you just pressed the "pause" button. The Court will tell you what the state of play is on this divorce. You may be able to pick up the threads and continue.