Court refuses to overturn Divorce obtained in error
Sir Andrew McFarlane, the President of the family division of the High Court, has rejected an application to overturn a Final Order for Divorce obtained inadvertently by the wife’s solicitors.
On October 3rd 2023 the online Divorce portal operated by HMCTS issued a Final Order of Divorce in proceedings between Mr and Mrs Williams. The solicitors acting for the Applicant, Mrs Williams, had used the online portal to apply for the Final Order, but did so without instructions or authority from their client.
The explanation behind this was that the member of staff dealing with the matter had intended to apply for a Final Order of Divorce for another client in a different case, but inadvertently opened the wrong electronic file on the portal, and proceeded to apply for the Final Order in the case of Williams rather than the one intended.
As soon as the mistake was realised, the Applicant wife’s solicitors applied to rescind the Final Order. Their Application was dismissed.
The President stated that there was "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 be considered voidable, let alone void. The Barrister representing the wife could not point to any authority to make good his assertion that the exercise by the solicitor of their apparent authority to act for the wife in applying for the Order was vitiated by the fact that the wife had not consented, thereby making the order voidable.”
The learned Judge went on to say that he was not persuaded that the circumstances in this case rendered the Order voidable, and accepted representation made on behalf of the Respondent husband that the court should be very slow to open up a potential third stage in Divorce proceedings where, post the making of the Final Order, a party can come back and say that that 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.