Darnton v Darnton & Anor

Permission to appeal against orders refusing to rescind or set aside divorce decrees and related orders was refused. Consent to decrees nisi cannot ordinarily be escaped by reopening issues which the parties accepted and which an earlier appeal has resolved. Section 1(3) of the Matrimonial Causes Act 1973 requires enquiry into the statutory facts alleged in divorce proceedings so far as reasonably possible; in any event, where both parties accept the marriage and supporting expert evidence confirms it, the court’s duty is discharged. Section 9(2) is directed principally to the failure to apply for a decree to be made absolute and is only a tenuous vehicle for an unrelated challenge to the validity of the marriage. Re-hearing under rule 2.42(1) of the Family Proceedings Rules 1991 does not permit a party to revive points already determined or advanced too late.

The applicant and first respondent underwent a marriage ceremony in Bangalore and lived as husband and wife for ten years. During divorce proceedings, the applicant disputed the marriage’s validity under Indian law, but on 13 December 2004 he amended his position, admitted the marriage, and consented to cross decrees nisi. The county court later refused his applications to rescind or set aside those decrees and other orders, and ordered costs on the indemnity basis. On 22 February 2006 it dismissed the substantive applications; on 28 April 2006 it made the costs order. The applicant sought permission to appeal, relying principally on the court’s duty under section 1(3) of the Matrimonial Causes Act 1973, section 9(2), rule 2.42(1) of the Family Proceedings Rules 1991, and Articles 6 and 9 of the Convention of 1950.

1. Permission refused. The proposed appeal concerned orders dismissing applications to rescind or set aside the decrees nisi and other orders made on 13 December 2004. The proceedings before the county court, and the proposed appeal, were properly characterised as abuses of the process. The points advanced were totally without merit.
2. Mr Darnton had freely consented to the decrees after positively averring that the marriage was valid. The earlier Court of Appeal decision dated 4 October 2005 had rejected his complaints about the compromise and held that the judge could pronounce decrees nisi without investigating afresh the prior issue of validity. That decision bound the county court and this court. The absence of a marriage certificate was likewise no longer an available point, having been rejected on 20 June 2005.
3. The court was bound by the earlier construction of section 1(3) of the Matrimonial Causes Act 1973, namely that the duty was to enquire, so far as reasonably possible, into the facts in section 1(2) which each party asserted. Even if the subsection also required enquiry into the alleged fact of marriage, the duty had been discharged: both parties accepted the marriage and two expert reports confirmed its validity. The applicant had not asked the judge to investigate further.
4. Section 9(2) was a tenuous basis for the application. Its central feature was the failure of the party obtaining a decree to apply for it to be made absolute. The resulting enquiry concerns the reason for that failure and whether the decree should be made absolute, rescinded, or otherwise dealt with. Here the first respondent had a clear reason for delay, because the applicant’s proceedings had placed the decree’s validity in issue and ancillary financial claims remained unresolved.
5. Rule 2.42(1) of the Family Proceedings Rules 1991 could potentially permit a re-hearing where no error of the court was alleged, consistently with Peek v Peek [1948] 2 All ER 297. It did not justify reopening matters already determined, matters barred by res judicata, or evidence raised too late. The complaints under Articles 6 and 9 of the Convention of 1950 were also unarguable. Lack of representation or advice in civil proceedings did not itself infringe Article 6, and the decrees did not impose Hindu beliefs on the applicant or infringe Article 9.
6. The county court’s indemnity costs order was within its discretion. The Court of Appeal declined to make a civil restraint order, but warned that the lack of merit in the applications could be relevant to any future consideration of such an order. Orders: permission to appeal refused in both applications; extension of time, no order.

• Court of Appeal (Civil Division) — On 5 July 2006, permission to appeal against the county court orders was refused in both applications. The orders were not disturbed.
• Bournemouth County Court — On 22 February 2006, HHJ Meston QC dismissed applications to rescind or set aside the decrees nisi and other orders made on 13 December 2004. On 28 April 2006, he ordered costs payable on the indemnity basis.
• Court of Appeal (Civil Division) — On 20 June 2005, permission to appeal against a preliminary ruling concerning the absence of a marriage certificate was refused. On 4 October 2005, the Court of Appeal dismissed the applicant’s challenges to the consent decrees and rejected complaints concerning the compromise and the extent of the enquiry required under section 1(3) of the Matrimonial Causes Act 1973.