Lomas v Lomas

Where a party seeks to challenge a decree absolute but had time and opportunity to appeal the decree nisi, Supreme Court Act 1981, section 18(1)(d) removes the right of appeal. If the party contends that there was no proper time or opportunity, the proper first step is to seek a declaration from the court that granted the decree nisi. Until that declaration is obtained, the Court of Appeal has no jurisdiction to entertain the proposed appeal.

The husband sought permission to appeal after a decree nisi had been pronounced in the York County Court and subsequently made absolute. He had unsuccessfully challenged the refusal to set aside the certificate placing the matter in the Special Procedure List and had pursued applications in the wrong court. The Deputy Master concluded that section 18(1)(d) prevented an appeal to the Court of Appeal. The issue was whether the Court of Appeal could intervene without a declaration from the court granting the decree nisi that the husband had not had time and opportunity to appeal.

1. Application dismissed. The Court of Appeal had no jurisdiction to entertain the proposed appeal against either the decree absolute or the decree nisi.
2. Section 18(1)(d) of the Supreme Court Act 1981 provides that no appeal lies from a decree absolute by a party who, having had time and opportunity to appeal from the decree nisi on which it was founded, has not appealed from the decree nisi.
3. Following the procedure clarified in Clark v Clark [1996] 1 FCR 125, a party asserting that there was no proper time or opportunity to appeal must first seek a declaration from the court which granted the decree nisi. The Court of Appeal may consider the appeal only once that declaration has been obtained.
4. The husband had not sought or obtained the necessary declaration. His application, made after the decree had become absolute, was therefore hopeless for want of jurisdiction. The Deputy Master was correct.
5. Ward LJ observed that, had a proper application for permission to appeal the decree nisi been made to the Court of Appeal while the matter remained pending, the county court would have been informed and the making of the decree absolute would have been stayed. That observation was additional guidance rather than a basis for the order.

• Court of Appeal (Civil Division): the application for permission to appeal the Deputy Master's direction was dismissed.
• York County Court: District Judge Wildsmith dismissed the application to set aside the certificate placing the divorce in the Special Procedure List. His Honour Judge Fricker dismissed the appeal and pronounced the decree nisi on 24 July 2000. The decree was made absolute on 20 September 2000.