Leake v Goldsmith

Where a decree has been pronounced under the wrong cause number and its validity is uncertain, the court may, with the parties’ consent, set aside the associated orders and proceed under the correct petition without determining whether the earlier decree was valid. The court should then take the necessary procedural steps afresh, including pronouncing the decree on the proper petition and addressing any statutory certificate or time requirement.

The petitioner had issued two divorce petitions. Following a successful financial dispute resolution hearing, the court considered the second petition and authorised its amendment and listing for pronouncement of decree nisi. The matter was mistakenly listed under the number of the first petition, and the decree nisi and section 41 certificate were made under that incorrect number.

The error was later identified. Both parties consented to setting aside the orders and supported re-listing the correct petition. The central issue was whether the earlier decree was valid and what procedural steps should follow.

1. The court recorded that the petition considered on 18 December 2008 was the petition in FD08D03699. Its order could not be amended under the slip rule because it correctly referred to the petition dated 30 July 2008 and the judge had signed a draft showing that cause number.
2. The decree nisi had subsequently been pronounced, and the related section 41 certificate made, under FD08D02250 rather than FD08D03699. The court expressly declined to determine whether that mishap made the earlier orders valid or invalid.
3. With the parties’ consent, the orders dated 19 December 2008 in FD08D02250 were set aside. The court then proceeded under the correct petition in FD08D03699, as amended pursuant to the order of 18 December 2008.
4. The court pronounced decree nisi on the basis that the marriage had broken down irretrievably, declared that there were no children of the family to whom section 41 applied, and abridged the time for decree absolute to seven days.

The judgment therefore resolved the procedural difficulty without deciding the underlying question of the validity of the misnumbered decree.