Sir Andrew McFarlane P. Erroneous application for a final order of divorce made by the solicitors for the applicant wife, in absence of the instruction or authority of their client.

Background

The parties were married for 22 years. W applied for a divorce in January 2023 and a conditional order was made in August 2023; the order directed a final order for divorce may be made from 21 September 2023. On 3 October 2023 at 5.14 pm W’s solicitors used the online portal to apply for final order of divorce, which was granted at 5.35 pm. However, they did not have instructions from their client to do this – they had intended to apply on another file and not the Williams file.

W’s solicitors discovered their mistake (October 5) and filed an ex parte D11 application (October 6) for the final order to be set aside. On 11 October W’s solicitors wrote to H’s solicitors to inform them of the events (H was not aware until this date despite receiving a letter informing him the parties were no longer married). On 13 October 2023 H’s solicitors wrote to court asking for hearing to be listed before the President of the Family Division.

On 17 October 2023 H asked for the set aside application to be listed or an on-notice directions hearing. However, on 9 November 2023 W’s solicitors discover an order made by DDJ Underhill (dated 17 October 2023), purporting to set aside the final order, had been added to the HMCTS Portal. On 14 November 2023 W’s solicitors wrote to H’s solicitors to inform them that per DDJ Underhill’s order, the parties remained married. H did not accept this and considered it had no effect in light of the order’s wording or it was wrongly made and could not reinstate the parties’ marital status to that before 3 October 2023.

NB. for the purpose of the hearing, it was accepted by the parties that the digital request for a final order had been made in error by W’s solicitors and without any instructions from W.

Discussion

Click of the mouse. A number of screens must be traversed in such an application, each of which would bear the name of the parties. At the final stage, after clicking the request for a final order, a further screen (with the name of the case appearing prominently) requests confirmation.

DDJ Underhill’s order of October 17 cannot be considered as a valid order and must be set aside as:

1. it was made without a hearing following W’s solicitor’s (October 6) D11 application;
2. such an application should have been made on formal notice to H (per FPR 7.31(a)). H was never formally served (he was informed in correspondence) and;
3. H’s request for it to be listed on-notice should have prevented the case ever being placed before the DDJ for a ‘paper’ determination.

Setting aside the final order

The analysis of Moylan LJ in Shahzad v Mazher [2020] EWCA Civ 1740 was binding on the court. (NB. Sir Andrew McFarlane at [46]–[50] sets out in some length Moylan LJ’s judgment in Shahzad). It is in the public interest that a final order of the court should be unimpeachable when ‘granted by a court with a competent jurisdiction and after compliance with the correct procedural requirements’. (Sir Stephen Brown P’s conclusion in Callaghan v Hanson-Fox & Anor [1992] Fam 1, as referred to by Moylan LJ at [50] in Shahzad.)

Sir Andrew McFarlane held that the existence of the procedural facility to set aside or amend in r 4.1(6) or r 29.16 (or under the inherent jurisdiction) 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 aside a final divorce order. For the reasons set out in Shahzad and earlier authority, the jurisdiction to review a decree absolute/final order is extremely constrained. The court must exercise its procedural power to set aside an order under r 4.1(6) or under the slip rule in r 29.16, with caution in the context of a final order (particularly one relating to marital status). There is also no reason for holding that the exercise of the inherent jurisdiction in this respect would be any less constrained (the clarification of the jurisprudence in Tibbles by Rix LJ does not explicitly relate to final orders).

Conclusion

W’s application to set aside the final order is dismissed. Drawing the matters together:

1. There is no reported authority where a decree absolute or final order has been set aside in the circumstances of complete procedural regularity.
2. There is no authority establishing that a final order made in such circumstances is to be considered voidable, let alone void. W’s counsel could not point to any authority to make good the assertion that the exercise by the solicitor of their apparent authority to act for W (in applying for the order) was vitiated by an absence of consent by W, thereby making the order voidable.
3. The court should be very slow to open up a third stage in divorce proceedings where, post-final order, a party can come back and say the application for the order was made by mistake.

Sir Andrew McFarlane held at [53] that:

'As the authorities make clear, a final order made without procedural irregularity should stand for all the world.'

But what if the order was voidable?

Sir Andrew McFarlane concludes that even if the facts of this case rendered the order voidable (as argued by W’s counsel), W’s application must fail and be dismissed as any public policy or other factor in favour of setting the order aside would be far outweighed by the almost invariable policy preference not to do so.

NB. Reference is made to Sir James Munby P’s conclusion in in M v P (The Queen’s Proctor Intervening) [2019] EWFC 14 that there is a general lack of appetite to find that the consequence of ‘irregularity’ is that a decree is void rather than voidable.