X v Y

A divorce decree remains valid where a competent court had jurisdiction and dissolved the parties’ marriage, even if the decree identifies the wrong ceremony or date of marriage. The court may correct the record to identify the true legal marriage. The correction does not alter the parties’ status retrospectively. Where the error is one of process, the appropriate route is Family Procedure Rules 2010, rule 4.1(6), rather than the inherent jurisdiction.

The applicant sought rectification of a decree nisi and decree absolute made in 1997. The divorce proceedings identified a later English marriage, although the parties had already contracted a valid marriage in Madrid in 1993. Both parties accepted the validity of the Spanish marriage. The respondent did not attend or make representations at the hearing.

The court considered whether the original English divorce proceedings had validly dissolved the Spanish marriage and whether the court had jurisdiction to correct the decrees. The central issue was whether the record could be amended without affecting the validity of the divorce.

1. Jurisdiction to dissolve the Spanish marriage. Under section 5(2) of the Domicile and Matrimonial Proceedings Act 1973, as applicable in 1996–1997, the English court had jurisdiction because the applicant was domiciled in England and Wales. There was no jurisdictional advantage in omitting the earlier Spanish marriage.
2. Validity of the divorce. The Spanish marriage was the parties’ true legal marriage. The later English ceremony had no legal effect on their status. Nevertheless, the decree absolute validly dissolved the marriage from the date it was pronounced. The error in identifying the marriage did not render the decree void.
3. Power to rectify. Following the approach in Thynne v Thynne [1955] 3 All ER 129, the court had jurisdiction and a discretion to correct the erroneous record. The decision in M v P [2019] EWFC 14, [2019] FLR 431 provided recent support for using rule 4.1(6) of the Family Procedure Rules 2010 to vary a decree.
4. Appropriate jurisdiction and order. The error was procedural, so rule 4.1(6), rather than the inherent jurisdiction, was the proper basis for relief. The decrees nisi and absolute were rectified to record that the marriage dissolved was the Spanish marriage celebrated on 25 May 1993. The order did not change the parties’ status, since they had already been validly divorced on 13 March 1997.