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Williams v Williams [2024] EWHC 733 (Fam)
This case concerned a final order of divorce applied for and granted in the wrong case.
Mrs Williams (the “wife”) issued an application for divorce on 17th January 2023 and a conditional order was made on 9th August 2023. On 3rd October 2023 a final order of divorce was made however, this final order was applied for by the wife’s solicitor via the online divorce without the wife’s instruction or authority – the staff member who did so had intended to apply for a final order of divorce in another case but had inadvertently opened the electronic case file in the case of Williams v Williams.
On 6th October 2023, the wife’s solicitor issued a without notice D11 application to set aside the final divorce order. On 11th October 2023 the wife’s solicitor wrote to Mr Williams’ (the “husband”) solicitor to inform them of what had happened. On 13th October 2023 the husband’s solicitors wrote to the court asking for the wife's application to be listed before the President of the Family Division and, by an application issued on 17 October 2023, for the set aside application to be listed at an on-notice directions hearing.
On 9th November 2023 the wife’s solicitor discovered an order on the HMCTS Portal by Deputy District Judge Underhill, dated 17th October 2023, setting aside the final order of divorce pursuant to the court’s power under rule 4.1(6) FPR 2010. The husband considered that DDJ Underhill’s order either had no effect in the light of its wording or was wrongly made.
The matter was dealt with by Sir Andrew McFarlane.
There was no dispute between the parties that the request for the final order was made in error and without any instruction from the wife.
In respect of the wife’s application to set aside the final order being without notice, it was conceded on behalf of the wife that the application should have been made on formal notice to the husband - FPR 2010, r 7.31(a) provides for notice to be given to the parties of the date, time and place of every hearing which is to take place in a case to which they are a party. Further, the husband was never formerly served. Sir Andrew McFarlane determined that DDJ Underhill’s order, dated 17th October 2023, could not be considered a valid order affecting the marital status of these parties; it was not constituted as it should have been as a formal, on notice, application to rescind a final order of divorce. Further, the husband's request for it to be listed on notice should have prevented the case ever being placed before the DDJ for a 'paper' determination. The order of 17th October 2023 was set aside.
The husband heavily relied upon the case of Shahzad v Mazher [2020] EWCA Civ 1740 as the most recent relevant Court of Appeal authority on the issue of setting aside the final order of divorce. In Shahzad v Mazher, the court conducted an extensive review of the authorities relating to the setting aside of a decree absolute of divorce. Sir Andrew McFarlane considered paragraphs 67-72 of the judgment:
"[67] I have set out above the key authorities which have considered the circumstances in which a decree absolute can be set aside. It is clear from these authorities that these circumstances are limited. They are limited because a decree absolute is a declaratory judgment which conclusively determines a person's marital status. In addition to the parties, all public authorities and all other individuals are entitled to rely on the declaratory effect of the decree. This can have significant consequences across a wide range of issues including, for example, the right to marry. To take that example, if a prior decree absolute were set aside, any subsequent marriage would be void under s 11(b) of the 1973 Act.
[70] It is a conclusion which is also supported by the statutory framework. Section 18(1) of the Senior Courts Act 1981 provides, as set out above, that a party cannot appeal from a decree absolute when they 'had time and opportunity to appeal from the decree nisi'. This makes clear that a party's ability to challenge a decree is prior to its being made absolute. Sections 8 and 9 of the 1973 Act, as referred to above, are 'restricted to the period before the decree is made absolute': Callaghan v Hanson-Fox and Another [1992] Fam 1, [1991] 2 FLR 519, at 7B and 525 respectively. These provisions, as was said by Sir Jocelyn Simon P in F v F [1971] P 1, [1970] 2 WLR 346, point to 'the importance Parliament attaches to the certainty of the change of status arising out of a decree absolute'.
[71] I turn finally to my determination on the facts of this case which I can also set out briefly.
[72] If the judge had set aside the decree absolute on the basis only of fraud as to the date of separation, this appeal might have taken a different course. However, the second part of his judgment made clear that he also set the decree aside because of procedural irregularity, namely that the decree had been made absolute in breach of FPR 2010, r 7.32(2) because the wife's application to rescind the decree nisi was pending. This, as Mr Timson rightly accepted, made the decree absolute voidable. The judge was plainly entitled to decide to set the decree aside and, although he expressed his reasons very briefly, Mr Timson has not persuaded me that the judge's decision was wrong or that there was any other flaw which would entitle this court to interfere with that decision."
Sir Andrew McFarlane was in full agreement with Moylan LJ’s analysis, which was in any event binding on the court. It was noted the wife’s submissions focused upon possible procedural routes that a court might follow to correct an error; the mere existence of a procedural power to set aside or amend an order does not, of itself, give the court an open jurisdiction to exercise that power where there is clear authority on the approach to be taken to a particular category of order, as is the case here with respect to a final order of divorce.
Sir Andrew McFarlane dismissed the wife’s application:
“[52]…against the background of clear authority as to the approach to be adopted given in Shahzad and the earlier cases, the existence of a procedural facility to set aside or amend in r 4.1(6) or r 29.16 (or under the inherent jurisdiction) in reality adds nothing and is of no relevance to the central question of whether, as a matter of substantive law, it is open to the court to set a final divorce order aside and, if so, whether it should do so on this occasion.
[53] Drawing matters together, there is no reported authority where a decree absolute or final order has been set aside in circumstances of complete procedural regularity. There is no authority establishing that a final order made in such circumstances is to be considered voidable, let alone void….I am unpersuaded that these circumstances do render the order voidable….the court should be very slow to open up a potential third stage in divorce proceedings where, post-final order, a party can come back and say that the application for the order was made by mistake. As the authorities make clear, a final order made without procedural irregularity should stand for all the world.
[54] For those reasons, I decline to hold that the final order made in this case was rendered voidable by the lack of actual consent from the wife, where her solicitors were generally authorised to act for her and the court was entitled to accept the application for the final order made by them as being validly made on her behalf. There being no other reason to consider setting the order aside, the conditional order having been validly made and the wife having been entitled to apply for a final order, the wife's application to set it aside must be dismissed.”
Sir Andrew McFarlane also considered whether, if he was wrong and the order was voidable, should it be set aside (paragraphs 55-56 of the judgement) and concluded no: “…even if the facts of this case render the order voidable, the Wife's application must fail and be dismissed.”
The full judgement can be found here.
