Williams v Williams

A final order of divorce is a declaratory judgment conclusively determining marital status. Where it is made by a court with competent jurisdiction and in compliance with the required procedure, it should remain unimpeachable and capable of reliance by everyone.

Procedural powers under the Family Procedure Rules 2010, including the power to vary or revoke orders and the slip rule, do not create an unrestricted jurisdiction to set aside a final divorce order. A solicitor’s lack of actual instructions to apply for the order does not, where the solicitor had apparent authority to act, make the order voidable. Even if an order were voidable, strong public policy favouring certainty of marital status would ordinarily outweigh the case for rescission.

The parties married in 2001 and separated in 2023. The Wife obtained a conditional order of divorce and became entitled to apply for a final order.

On 3 October 2023, her solicitors mistakenly used the online divorce portal to apply for the final order in this case, intending to act in another client’s case. The portal issued the final order. The Wife then applied without notice to set it aside, and a deputy district judge purported to do so on paper. The Husband challenged that order and sought an on-notice determination.

The central issues were whether the deputy district judge’s order was valid and whether the final order could be rescinded because the Wife had not authorised the application.

1. The deputy district judge’s order was set aside. The Wife’s application to rescind the final order should have been made formally and on notice. The Husband was not formally served, and he had requested an on-notice hearing. The paper order therefore could not validly affect the parties’ marital status.
2. The final order was not voidable. Shahzad v Mazher established that a decree absolute, now a final order of divorce, conclusively determines marital status and is equivalent to a judgment in rem. It should stand against the world when granted by a court with competent jurisdiction and after compliance with the correct procedural requirements. The court adopted that analysis and held that the same approach applies to a modern final order.
3. The Wife’s reliance on procedural powers under rules 4.1(6) and 29.16 of the Family Procedure Rules 2010, and on the inherent jurisdiction, did not assist. Those powers permit correction or case management in appropriate circumstances, but do not create an unrestricted substantive jurisdiction to rescind a final divorce order. Tibbles v SIG Plc expressly left the position concerning final orders open.
4. The error occurred in the solicitors’ application, not in the court’s order. The solicitors were generally authorised to act for the Wife, and the court was entitled to treat their application as validly made on her behalf. The absence of the Wife’s actual consent therefore did not render the final order voidable.
5. Even if the order had been voidable, the application would have failed. The certainty and finality attaching to marital status, and the public interest in maintaining the status quo established by a final order, outweighed any factor favouring rescission.

The Wife’s application to set aside the final order was dismissed. Costs were to be considered separately by email.