Afshar v Lomas

A county court has no jurisdiction to set aside a decree absolute of divorce. The relevant power lies only in the Court of Appeal and is subject to statutory limits. Under section 18(1)(d) of the Supreme Court Act 1981, no appeal lies from a decree absolute where the party had time and opportunity to appeal from the decree nisi and failed to do so. Procedural objections, personal grievance or an appeal to wider public justice cannot overcome that statutory bar. The decree must be treated as final where no qualifying rehearing order or timely appeal exists.

Dr Lomas sought permission to appeal an order of His Honour Judge Cliffe, who had dismissed his application to set aside the decree absolute dissolving his marriage and, in effect, to pursue the divorce on different grounds.

The decree nisi had been granted after earlier applications and an appeal were dismissed. The decree absolute followed on 20 September 2000. The Court of Appeal had previously refused an application to appeal the decree absolute under section 18(1)(d) of the Supreme Court Act 1981. The central questions were whether Judge Cliffe had jurisdiction to set aside the decree absolute and whether any route remained by which it could be reopened.

1. Application dismissed. Permission to appeal from Judge Cliffe’s order was refused.
2. Judge Cliffe had correctly held that he had no jurisdiction to set aside a decree absolute of divorce. The power to do so lay only in the Court of Appeal, and that power was subject to statutory restriction.
3. Section 18(1)(d) of the Supreme Court Act 1981 provided that no appeal lay from a decree absolute by a party who had had time and opportunity to appeal from the decree nisi on which it was founded but had not appealed from the decree nisi.
4. Dr Lomas had not appealed from the decree nisi. Nor had he obtained a rehearing order establishing that he lacked time or opportunity to appeal. The time for obtaining such relief had long passed.
5. The Court of Appeal therefore had no available relief capable of disturbing the decree absolute. Sympathy for the applicant’s grievance and his wish to defend his character could not create jurisdiction or displace the statutory bar. He had to accept the finality of the divorce.

Order: application for permission to appeal dismissed.

• Court of Appeal (Civil Division): On 25 July 2002, Lord Justice Ward dismissed the application for permission to appeal from Judge Cliffe’s order.
• York County Court: On 11 February 2002, His Honour Judge Cliffe dismissed the application to set aside the decree absolute, holding that he had no jurisdiction.
• Earlier divorce proceedings: District Judge Wildsmith dismissed applications concerning the decree nisi. His Honour Judge Fricker QC dismissed the resulting appeal on 24 July 2000 and granted the decree nisi. The decree absolute was made on 20 September 2000. A further Court of Appeal application concerning the decree absolute was dismissed on 7 November 2001.