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Home > Judgments > 2019 archive

Ali v Barbosa [2019] EWHC 2776 (Fam)

Application by a husband for Decrees Absolute and Nisi, and all related orders be set aside due to issues with service.

Mrs Justice Lieven, sitting in the Family Division of the High Court in October 2019, considered whether issues relating to the Family Procedure Rules regarding the service of a divorce petition would make subsequent orders and decrees void. She found that where reasonable steps have been taken to serve a petition and there is no prejudice to the party being served due to the mode of service used, any procedural errors would more likely not render subsequent decrees and orders void but voidable. Such cases remain fact specific but should also take into account any attempts to avoid service.

Background
The husband, a Pakistani national, and wife, a Portuguese national, married in April 2014. The wife's divorce petition was issued in June 2015. An Edinburgh address was given by the wife for service at which the husband accepted he lived from March – 28th October 2015. The wife's case is that the husband continued to live there or had access to it after that period.

The Court posted the petition which was "Returned to Sender" in June 2015. The wife's solicitors used a process server on 30th October 2015 who filed an affidavit of service stating he had knocked and left a calling card addressed to the husband. The server unsuccessfully attempted service twice more having received a call from someone who the server says identified themselves as the husband and arranged to accept delivery. The wife's solicitors sought permission to dispense with service. The Court replied that "having established the [husband] does live at the address they should instruct their agents to leave the papers at the address and apply for deemed service."

In February 2016 DDJ Yeshin at the Family Court at Romford made an order: "having read the affidavit of the process server, it is ordered that the petition was deemed served on the respondent on 8th January 2016." Subsequently a decree of entitlement to divorce was issued, and decrees nisi and absolute pronounced.

The husband had petitioned for divorce in Scotland in September 2016, with the Edinburgh Court pronouncing decree absolute in November 2016.

In December 2016 the Home Office revoked the Husband's residence card as he was no longer a family member of an EEA national. The Wife had remarried and sponsored her second husband's application for leave to remain.

The dates of the divorce petition and decrees are highly important to the husband's immigration status. If a marriage exceeds three years a family member can retain the right of residence. The Scottish decree would exceed the three year period, the English one would not.

Issues

1. Was the petition or application in the English proceedings served in accordance with the FPR?

2. Should the DDJ's order for deemed service be set aside?

3. If there were a procedural irregularity, can it be rectified?

Law
Lieven J noted the complicated case law in such matters and looked to M v P [2019] EWFC 14 in which the then President set it out the relevant precedents in considerable detail from paragraph 47 onwards. She noted a number of key cases: Everritt v Everritt [1948] 2 All ER 545, Wiseman v Wiseman [1953] 2 W.L.R. 499,  Ali Ebrahim v Ali Ebrahim (Queen's Proctor Intervening) [1983] 1 WLR 1336, Batchelor v Batchelor [1984] FLR 188, and Manchanda v Manchanda [1995] 2 FLR 590. Lieven J then considered the then President's conclusions in M v P [paragraph 94], and his reasoning from paragraph 99 onwards regarding the differences between void and voidable, quoting:

[100] "That apart, there are, I think, three general conclusions to be drawn from this survey of the jurisprudence:

i) First, a general lack of appetite to find that the consequence of 'irregularity' – I use the word in a loose general sense and not as a term of art – is that a decree is void rather than voidable…

ii) Secondly, a general recognition that only if the decree is held to be voidable, and not void, will the court be able to do justice to all those whose interests are affected and having regard to the particular circumstances of the case.

iii) Thirdly, recognition of the public interest, where matters of personal status are concerned, in not disturbing the apparent status quo flowing from the decree and the certainty which normally attaches to it…"

[101] "Putting the issue in its wider context, Mr Murray helpfully took me to the discussion, in the eighth edition of De Smith's Judicial Review … of current thinking about the distinction in public law (that is, public law as the expression would be understood by administrative lawyers, rather than as it might be understood by family lawyers) between acts or decisions which are void and those which are voidable. It is reassuring to see that family lawyers are not the only ones who struggle with the distinction, for the authors observe that "Behind the simple dichotomy … lurk terminological and conceptual problems of excruciating complexity" and go on to cite (para 4-070) a dispute within the Academy where the view of one corner is denounced by the other as "a tissue of pseudo-conceptualism behind which lurks what is in reality a pragmatic conclusion." Grateful though I am to Mr Murray, it is neither necessary nor appropriate for me to chart these difficult waters, though I note the view of the authors that in the public law context the distinction has been "eroded" by the courts, which "have become increasingly impatient with the distinction."

Lieven J extracted the following principles:

i. The Court has a lack of appetite to find that the decree is void; see M v P at paragraph 100;

ii. The Court has a concern to try to recognise what is the apparent status quo flowing from the degree and the certainty which normally attaches to the decree;

iii. That must be in part because where one party has changed their position on the basis of the decree and, in particular, of course on the facts, the most likely way is going to be by remarrying, then efforts should be made to uphold that change of position in law;

iv. There is a trend in divorce law, and as can be seen from paragraph 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; and

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

Her view is that for cases related to service it is appropriate to look at the nature of what went wrong and where any prejudice may lie. Errors related to service do not necessarily render a decree void as that would create obvious injustice, particularly in cases where a party may seek to avoid service. The principle of the outcome being void is not one dictated by the Rules themselves, let alone statute.

Conclusion
Applying those principles to the facts of this case, Lieven J found:

- The wife took reasonable steps to ascertain the husband's location and there were no grounds for the wife not to put the Edinburgh address on the application. The process server tried personal service and spoke to someone purporting to be the Husband. The server was fully entitled to believe that the husband was still living at the address.

- There is some evidence that the husband sought to avoid service. No factual findings were made but given the husband's precarious immigration status it is surprising he did not take steps to account for his mail.

- DDJ Yeshin did not make any error of law in making the order for substituted service under Rule 6.16.

- Any procedural errors there may have been did not render either the order or the subsequent decrees and orders void.

- There was no prejudice to the husband from the failure to serve, however, there was extreme prejudice to the wife as she has remarried and had a child, her second marriage being made at a time when the first marriage otherwise would have persisted.

Therefore, any failure to comply fully with the Rules rendered the various orders voidable not void and Leiven J declined to exercise her discretion to order them to be set aside.

Summary by Tadhgh Barwell O'Connor, Pupil, 1KBW.

You can read the full judgment of Ali v Barbosa [2019] EWHC 2776 (Fam) on BAILII