Divorce and setting aside decrees

By Vicki Rawlins, Family Law associate at Irwin Mitchell

The recent divorce case of Shahzad v Mazher  [2020] EWCA Civ 1740, [2020] All ER (D) 108 (Dec) has caught my attention.

The case concerned firstly an allegation that the husband had given a false date in his application for a divorce of separation of 2006, when in reality it was ten years later in 2016. His petition was issued in May 2017 and he relied upon the parties having been separated for five years as the basis for the divorce. He applied for and obtained an order for deemed service on the wife in June 2018 stating that the acknowledgment of service form had been sent to the wife but she had failed to complete it. The Court of Appeal later confirmed that this application was incorrectly made.

In January 2019 the wife wrote to the court and asked to stop the divorce as they had not been separated for the relevant five years. In March 2019 the wife applied for the decree nisi of February 2019 to be set aside on the basis of fraud. Despite this, the court then pronounced decree absolute - i.e. before the wife’s application had been determined, which was noted as a procedural irregularity.                                       

The Queen’s Proctor intervened, asking for both decrees to be set aside as if the wife was correct as to the date of separation, then both of these had been improperly obtained.

At first instance the judge found that the husband had committed fraud by giving a clearly incorrect separation date. The judge also found that if the court had dealt with the wife’s application correctly, then decree absolute would not have been pronounced in any event.

At appeal Moylan LJ held that a decree absolute should be unimpeachable if no question arises as to the court’s jurisdiction to entertain a petition. He confirmed that perjury alone is insufficient to make a decree absolute void on the ground of fraud. It was necessary for the  fraud to have ‘materially deceived’ the court in respect of its jurisdiction to entertain a petition, or there has to have been a ‘serious procedural irregularity’.

In this case there was such irregularity because the decree absolute should not have been pronounced given the wife’s ongoing application to rescind. The two issues together persuaded the judge to set aside the decree absolute and rescind the decree nisi.

This is an interesting case serving as a swift reference that covers fairly uncommon divorce issues.