ALI V BARBOSA[2019] EWHC 2776 (Fam)– Void or Voidable. Maintaining the discretion of the family court and the importance of the circumstances of the case

In October 2019, Mrs Justice Lieven DBE considered an application by a husband that the wife’s divorce proceedings, and the decree absolute, should be set aside for breaches in relation to service of the proceedings.

The case gives an insight into when the courts may consider proceedings for divorce void or voidable and is a useful authority in high conflict cases where proof of service may be problematic.  It is also a case where the court strains in favour of maintaining a discretion and the importance of the individual circumstances of each case where there are competing interests.

The parties married in Scotland in April 2014.  The wife was a Portuguese national and the husband was a Pakistani national. The marriage quickly broke down and the wife’s divorce petition was issued in June 2015. There were difficulties with service. The petition was sent to an address that the wife contended the husband either lived at or had access to throughout the relevant period, but was returned to sender.

Personal service was subsequently arranged.  The process server attended the property on two occasions.  He was unable to make contact with the husband and left a calling card.  The husband subsequently telephoned the process server and arranged a date to deliver the papers to the address.  However, when the process server attended on the agreed day, the husband did not turn up.

In February 2016, an order for deemed service was made based on the affidavit evidence of the process server.

The decree absolute was granted in May 2016.

Subsequently, the husband petitioned for divorce in Scotland in September 2016 and the Scottish decree was granted in November 2017.

The date of the decrees was highly important from the point of view of the husband’s immigration status because one way in which a former EEA family member can retain a right of residence is if the marriage exceeds 3 years.

In December 2016 the Home Office had written to the husband that it was revoking his residence card on the basis he was no longer a family member of an EEA national.

The husband denied that he had made the phone call to the process server and claimed that there had not been effective service of the proceedings pursuant to the FPR and that the court had no discretion and had to set aside the order and decrees.

The court considered the FPR Rules and the case law which was described as  “quite long and complicated” and extracted the following principles:

1.     The court has a lack of appetite to find the decree is void.

2.     The court has a concern to try and recognise what the apparent status quo flowing from the decree is and the certainty which normally attaches to the decree.

3.     The above is due in part because where one party has changed their position  on the basis of the decree, and in particular, on the facts, the most likely way is going to be by way of remarrying, then efforts should be made to uphold the change of position in law.

4.     There is a trend in divorce law, and as can be seen from para 101 of M V P and in public law administrative law, to move away from technical distinctions of void and voidable and look perhaps more rigorously at prejudice and change of position.

5.     There remains a category of case where a decree or an order will simply be void, see M v P paragraph 94, but in court’s view, the most obvious example of that is where there is simply no jurisdiction to make the order or where there is fraud.

The judge held that the case law shows that when it comes to failures related to service, it is appropriate to look at the nature of what went wrong, and where the prejudice, if any, lies and that it follows that not all errors render the decree void because to reach such a conclusion would create injustice.

It was further held that the principle of the outcome being void was not one dictated by the Rules themselves, let alone statute.

Applying those principles  to the facts of the case to the degree that there were any errors in service they did not render the order for deemed service or the subsequent decrees void.

The judge also found that the prejudice to the husband did not arise from the failure to serve and the greater prejudice was that of the wife who had re married and had a child.

J Lieven therefore concluded that the failure to fully comply with the Rules rendered the various orders voidable and not void and declined to exercise her discretion to set them aside.

Comment

The outcome appears to have been based around the competing prejudice of the parties. The prejudice to the wife was considered extreme given she had remarried at a time when the first marriage would still have existed had the application had been granted.

FPR Considered

Rule 6.4

Rule 6.13

Rule 6.16

Case Law considered

M v P [2019] EWFC 14

Everritt v Everritt [1948] 2 All ER 545

Wiseman v Wiseman