Leake v Goldsmith

This is an application for pronouncement of a decree nisi of divorce. It comes before me in circumstances that are both unusual and most unfortunate. For the latter fact the court itself is significantly to blame, and for that the parties are entitled to an unreserved apology. Happily no lasting harm has been caused to either of them.

The matter originally came before me for a financial dispute resolution (FDR) hearing on 18 December 2008. The FDR was successful, but I was told that there had been a hitch in the PRFD, with the consequence that there was no decree nisi. (Seemingly, on the previous day, 17 December 2008, DJ Million had noticed that the marriage certificate was not on the file.) I was accordingly asked by the parties, and agreed, to deal with the divorce myself.

I went into open court and heard formal evidence from the wife, which was not challenged. When asked to grant a decree on her evidence, I declined to do so, causing a certain amount of consternation until I explained that I had noticed that the address she gave in her oral evidence was not precisely the same as the address given in the petition and that the petition would therefore, as it seemed to me, require to be amended. Subject to that, however, I pronounced myself satisfied that the wife had established her case for a decree, being satisfied that the husband had behaved in such a way that she could not reasonably be expected to live with him and that the marriage had broken down irretrievably.

I should mention at this point that the wife had in fact issued two petitions: the first (FD08D02250) was dated 9 May 2008 – the first anniversary of the marriage – and the second (FD08D03699) 30 July 2008. It is quite clear that it was the second petition (FD08D03699) which was before me and which I was considering on 18 December 2008.

At the end of the hearing I made an order, dated 18 December 2008, which, inter alia, gave the wife permission to amend her petition dated 30 July 2008, that is, the petition in FD08D03699. Paragraph 4 of that order directed that “The Suit” – which must mean FD08D03699 – “be listed for pronouncement of Decree Nisi” before me the next day, 19 December 2008.

The matter was listed before me the following day. In the absence of the parties, as anticipated, I pronounced the decree in open court. Unhappily – and this is the cause of the difficulty, though no-one spotted it at the time – what had been listed before me was not FD08D03699 but FD08D02250, and both the order containing the decree nisi and the order containing the section 41 certificate, each dated 19 December 2008 and sealed on 14 January 2009, were shown as having been made in FD08D02250.

The problem was subsequently detected by DJ Million, who referred the matter back to me.

It is absolutely clear that the petition I heard on 18 December 2008 was FD08D03699 and that there is no scope for amending my order of 18 December 2008 under the slip rule: (1) the order refers to the petition dated 30 July 2008 and (2) I personally signed the draft clearly showing FD08D03699 at the top. But it is equally clear that the decree was listed for pronouncement the following day under the wrong number – FD08D02250 – in circumstances where both the Associate and I entirely overlooked the fact that the number on the cause list differed from the number on the order I had approved the previous day. The questions accordingly arose, Was the decree nisi valid? Should the case be re-listed for pronouncement under the correct number?

In accordance with my instructions, the Clerk of the Rules wrote to both firms of solicitors on 6 April 2009, indicating that a question had arisen as to the validity of the decree and explaining why. The letter went on to say that I proposed, in the circumstances, to set aside the decree nisi and section 41 certificate dated 19 December 2008, to list the proper petition for pronouncement in open court, and then to abridge time for decree absolute to (say) 7 days, but that before taking any of these steps I wished to be able to consider any observations either of their clients might wish to make. The letter concluded by saying how very sorry I was that this problem had arisen, but that my concern, obviously, was to ensure now that there could not in future be any question as to the validity of the decree.

The respondent’s solicitors replied on 15 April 2009 saying that they were happy to proceed in the manner I had proposed. The petitioner’s solicitors replied to similar effect on 23 April 2009, adding that they would be grateful if I would abridge time for decree absolute to 7 days.

The matter has accordingly been listed before me today, correctly under FD08D03699. Having explained what has happened, I will now take the following steps:

First, I record that on 5 May 2009 I made an order by consent setting aside the two orders dated 19 December 2008 in FD08D02250, that is the order containing the decree nisi and the order containing the section 41 certificate.

Secondly, and in accordance with the order I made on 18 December 2008 in FD08D03699, I hereby pronounce a decree nisi on the wife’s petition dated 30 July 2008 in FD08D03699 (as amended pursuant to the order dated 18 December 2008) on the basis, as I have already said, that the marriage has broken down irretrievably.

Thirdly, I declare that I am satisfied that, for the purpose of section 41, there are no children of the family to whom that section applies.

Fourthly, I abridge time for decree absolute to 7 days.

Happily – happily, that is, from every point of view – both the petitioner and the respondent are alive and, I trust, in good health. There is therefore no need for me to explore precisely what the legal effect was of the mishap on 19 December 2008. It may be that the decree nisi pronounced on 19 December 2008 was valid; it may be that, because of the mishap I have described, it was not. That is not a matter upon which I propose to express any views, let alone to determine. The matter now proceeds, as will be appreciated, on the basis of a consensual setting aside of the orders I made on 19 December 2008, without the need to decide whether they were in fact valid or invalid.

I repeat my apology to the parties for what has happened.