Seiden v Fularon

A decree nisi of nullity cannot be appealed after it has been made absolute. A party who had time and opportunity to appeal from the decree nisi cannot appeal from the decree absolute where Supreme Court Act 1981, section 18(1)(d) applies. The procedural route identified by rule 2.4(2) is to seek a rehearing before the judge who granted the decree nisi, asking for a declaration that the party lacked time or opportunity to appeal. Delay and knowledge of the decree are material. Complaints about the other party’s conduct may be relevant to ancillary relief, but they do not revive an unavailable appeal.

The parties underwent a marriage ceremony in 1991. The applicant obtained a divorce decree absolute in 2005, but later discovered that the respondent had previously married in the Philippines. The divorce decrees were set aside and the applicant was permitted to amend his petition to seek nullity for bigamy.

Mr Andrew Moylan QC, sitting as a deputy High Court judge, was satisfied that the grounds had been proved and directed that the suit be listed for pronouncement of a decree of nullity. Munby J subsequently pronounced a decree nisi of nullity on 26 June 2006, which was later made absolute. The applicant sought permission to appeal in June 2008. The central issues were whether he could appeal the decree nisi after it had become absolute and whether he could appeal the decree absolute.

1. Application refused. The application for permission to appeal was wholly misconceived and without merit.
2. A decree nisi cannot be appealed once it has been made absolute. The applicant therefore could not challenge the decree nisi directly.
3. Nor could he appeal the decree absolute. Section 18(1)(d) of the Supreme Court Act 1981 bars an appeal from a decree absolute of divorce or nullity by a party who had time and opportunity to appeal from the decree nisi on which it was founded but did not do so.
4. Rule 2.4(2) identifies the appropriate procedural route: an application for a rehearing before the judge who granted the decree nisi, seeking a declaration that the applicant lacked time or opportunity to appeal. The Court did not determine any such application. It noted that the applicant had been aware by November 2006 that a decree had been granted and had himself applied for it to be made absolute. His two-year delay in seeking permission to appeal had no adequate explanation.
5. The Court directed attention to the ancillary relief proceedings. Complaints concerning the respondent’s deception and bigamous marriage could be raised before the judge determining ancillary relief. The Court referred to S-T v J [1998] Fam 103 as an example of how those matters might be presented, but did not decide their merits.

The certificate of satisfaction concerning the children had been granted under section 41 of the Matrimonial Causes Act.

• Court of Appeal (Civil Division): The application for permission to appeal was refused.
• Principal Registry of the Family Division: Munby J pronounced a decree nisi of nullity on 26 June 2006. The decree was subsequently made absolute.