Ali v Barbosa

In matrimonial proceedings, non-compliance with service rules does not automatically render a decree void. The court must examine the nature of the procedural failure and the prejudice, if any, caused by it.

Decrees are more likely to be void where the court lacked jurisdiction or was induced to act by fraud. Service irregularities may instead make a decree voidable, particularly where the court had jurisdiction and the apparent status quo has been relied upon, for example by remarriage. The court should consider prejudice and changes of position rather than apply technical distinctions mechanically.

The husband applied to set aside the orders for deemed service, the certificate of entitlement, and the decree nisi and decree absolute dissolving his marriage to the respondent. The parties had married in Scotland. The wife’s English divorce petition was sent to the husband’s last known address, and a process server attempted personal service there.

The husband disputed receiving the petition and argued that the Family Procedure Rules had not been complied with. He submitted that the resulting orders and decrees were void. The wife argued that service was effective or, alternatively, that any procedural errors made the decrees voidable only. The central issues were whether service complied with the Rules and, if not, whether the orders and decrees were void or voidable.

1. Application refused. The orders for deemed service and the subsequent divorce orders and decrees were not void. Any procedural errors rendered them voidable, but the court declined to set them aside.
2. Under the Family Procedure Rules, the relevant starting point for service in Scotland was Rule 6.43, referring to Rule 6.26(5). The application was to be served at the party’s address for service unless personal service or another method had been authorised. The court considered Rules 6.4, 6.13, 6.16 and 6.19.
3. The wife had been entitled to use the husband’s last known address. She had taken reasonable steps to check whether he remained there, including using an address-search website and attempting to obtain his address from him. The process server had attempted personal service and had spoken to a man who identified himself as the husband. The deputy district judge therefore made no error of law in making the order under Rule 6.16.
4. Even if the application had not been served by post, or the court could not properly have been satisfied that the husband had received it, those errors did not automatically make the order or decrees void. M v P [2019] EWFC 14 demonstrated a general reluctance to treat procedural irregularities as creating nullities, while recognising that some cases remained void, particularly where there was no jurisdiction or fraud.
5. The service authorities showed that non-service did not invariably make a decree void. The court had to assess what went wrong and where prejudice lay. The husband had identified no prejudice arising from non-service affecting his ability to resist the divorce. By contrast, setting aside the English decree would seriously prejudice the wife, her second husband and their child because the wife had remarried.
6. The public interest in preserving certainty of marital status and the apparent status quo supported leaving the decrees in place. The application was therefore dismissed.