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Case summary: Ali v Barbosa [2019] EWHC 2776 (Fam)

10th November 2019

Florence Jones, Barrister, 1 Hare Court

The case concerned an application by the husband to set aside: a) an order for deemed service of a divorce petition; b) all orders which stemmed from that petition (certificate of entitlement, decree nisi, decree absolute). The question for the court was: did the alleged procedural errors in service render the orders void or voidable? The court concluded that: a) under the Family Procedure Rules (“FPR”) the alleged errors in service would not necessarily render these orders void; b) when considering the prejudice to both parties, this was not a case where the orders were void; d) if the orders were voidable the court would not exercise its discretion and set aside the orders. The husband’s application was dismissed.

The parties married in Scotland in April 2014 and separated in January 2015. The wife issued her divorce petition in June 2015 in England. The wife made several attempts to serve the petition on the husband first by post and then by personal service with a process server. However, it was not possible [4-5].

The wife next sought permission from the court to dispense with service. The court instead advised that she make an application for deemed service. In February 2016 an order was made deeming the petition served (although the husband disputed that this application had been made) [7]. Decree nisi was granted in April 2016, and decree absolute in May 2016 [8].

The wife re-married. In September 2016 the husband petitioned for divorce in Scotland – decree absolute was granted in November 2017.

The relevance of the two petitions is that it would decide the husband’s immigration status (the wife was Portuguese and the husband Pakistani). If the English petition was valid his residence would be revoked, as the decree absolute was granted less than 3 years after marriage. However, if the Scottish petition was valid his residence would not be revoked, as it was more than 3 years after marriage.

The husband argued that service was not effective under the FPR [16-21]:

  • The wife had not properly complied with the rules for service.
  • There must be strict compliance with these rules.
  • Therefore, the court had to set aside both the order for deemed service and the subsequent orders.

The wife submitted that she had complied with the rules for service and, even if she had not, the orders would be voidable, not void [22-3].

The court dismissed the husband’s application.

The court conducted an analysis of the case law (particularly M v P [2019] EWFC 14) drew the following conclusions [35]:

  • There is a “lack of appetite” to find a decree void.
  • The status quo is important, particularly if one party has re-married.
  • There is a “trend” in both family and public law to move away from strict void/voidable distinctions and look at prejudice to the parties.
  • There are still cases where a decree would be void – the most obvious examples would be fraud or lack of jurisdiction.

This led to two conclusions [36]. First, whether or not the orders would be considered void is not “dictated by the Rules themselves, let alone the statute”. Second, when assessing if the orders would be void or voidable the court should look at “nature of what went wrong and where the prejudice, if any, lies”.

The court did not make a finding that there were procedural errors but held that even if there had been, they would not automatically render the order for deemed service, and subsequent orders, void [41]. The court then considered the prejudice to both parties. On the one hand there would be extreme prejudice to the wife, who had re-married. On the other hand, although the husband was prejudiced by the divorce itself, he was not prejudiced by the alleged failure to serve as he would not have been able to resist the divorce anyway. Consequently, the order for deemed service and subsequent errors could only be voidable [44]. The court therefore had a discretion to set aside the orders, but chose not to exercise that discretion.

By Florence Jones, Barrister, 1 Hare Court