Shahzad v Mazher & Anor

A decree absolute is a judgment in rem which conclusively determines marital status. It cannot be set aside merely because a petitioner obtained it by advancing false evidence to establish a statutory fact required for divorce. The material fraud must concern the court’s jurisdiction to entertain the petition, or there must be a fundamental procedural irregularity.

A decree made absolute while an application to rescind the decree nisi remains pending, contrary to Family Procedure Rules 2010, r 7.32(2), is voidable. The court may set it aside. Where the factual basis for the petition is false, the court may also rescind the decree nisi, set aside the certificate of entitlement and dismiss the petition.

The husband petitioned for divorce on the basis that the parties had been separated for five years. The wife later asserted that they had separated only in January 2016. After a decree nisi had been pronounced, she applied to rescind it and set aside the certificate of entitlement.

Before that application was determined, the husband obtained a decree absolute. The Family Court found that he had falsely stated the date of separation. It set aside the decree absolute, rescinded the decree nisi, set aside the certificate and dismissed the petition. The Queen’s Proctor intervened.

The husband appealed. The central issue was whether a decree absolute could be set aside because the petitioner had falsely established a fact under Matrimonial Causes Act 1973, s 1(2), and whether the pending rescission application independently justified the order.

Appeal dismissed. Moylan LJ, with whom Singh and Popplewell LJJ agreed, upheld the orders below.

1. A decree absolute is a declaratory judgment in rem. It conclusively determines marital status and may be relied on by the parties, public authorities and others. The public interest in certainty therefore confines the circumstances in which it may be disturbed.

2. The court rejected the contention that false evidence concerning a fact in Matrimonial Causes Act 1973, s 1(2) gave a power to set aside the decree absolute. Consistently with Callaghan v Hanson-Fox [1992] Fam 1 and Rapisarda v Colladon; Re 180 Irregular Divorces [2015] 1 FLR 597, perjury or fraud going only to the court’s power to grant a decree is insufficient. The relevant fraud must materially deceive the court about its jurisdiction to entertain the petition, or accompany serious procedural irregularity.

3. There was, however, a serious procedural irregularity. The decree was made absolute while the wife’s properly issued application to rescind the decree nisi remained pending. This contravened r 7.32(2) of the Family Procedure Rules 2010 and made the decree absolute voidable. The judge was entitled to set it aside.

4. The judge was also entitled to rescind the decree nisi and set aside the certificate of entitlement. The husband’s asserted five-year separation was false. There was consequently no basis to preserve the petition or the orders made upon it, and dismissal of the petition was justified.

5. Although not necessary to the result, the court clarified that the deemed-service provisions in rr 6.15 and 6.16 did not govern personal service where no acknowledgement of service was filed. That situation was governed by r 6.17.

• Court of Appeal (Civil Division): Dismissed the husband’s appeal and upheld the setting aside of the decree absolute, rescission of the decree nisi, setting aside of the certificate of entitlement, and dismissal of the petition.
• Family Court sitting at Guildford: On 15 November 2019, set aside the decree absolute, rescinded the decree nisi, set aside the certificate of entitlement and dismissed the husband’s divorce petition.