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Home > Judgments > 2019 archive

Power v Vidal [2019] EWHC 2101 (Fam)

The matter came before Mr Justice Mostyn for a declaration in respect of a Decree Absolute which had been obtained by the parties in 1997.

The Petitioner had issued a petition for divorce in 1994 in Willesden County Court. Decree Nisi was pronounced on 12 November 1996 and Decree Absolute was granted on 29 January 1997.  In 2018, the Petitioner took steps to remarry and thus required his Decree Absolute. A formal application was therefore made and issued at Willesden County Court, seeking that a copy of the Decree Absolute be provided to the Petitioner.

The Decree Absolute could not be found by the court, nor could the court confirm the date upon which it had been granted. It also transpired that the original case file had been destroyed by the court in 2013, despite the agreed HMCTS record and retention policy directing that key documents within divorce proceedings should be retained for a total of 100 years. There was no trace of the file in storage, no information with the Office of National Statistics, nor a record of the Decree Absolute on the central index pursuant to the Family Procedure Rules.

The Respondent was eventually contacted in Australia, and was able to provide her certified copy of the Decree Absolute, however no original document was found.

The Judge therefore considered it necessary for the High Court to make a declaration in order to put the parties in a position as close as possible to that which they would have been in, if the file had not been destroyed and the original Decree Absolute been lost.

The Court observed that the existence of the High court's 'inherent declaratory jurisdiction' had been confirmed in the case of Egeneonu v Egeneonu [2017] 2FLR 1181, and that the power to grant declarations was a statutory power arising from Section 19 of the Senior Courts Act 1981.
Mr Justice Mostyn therefore declared that:

i. The Respondent's copy of the Decree Absolute was an authentic an accurate copy of the original document

ii. The marriage was indeed dissolved on 29 January 1997.
The Judge concluded by ordering that the declaration to be recorded and filed in accordance with the rules.

 

Summary by Mavis Amonoo-Acquah, barrister, Harcourt Chambers

You can read the full judgment of Power v Vidal [2019] EWHC 2101 (Fam)  on BAILII