Court Refuses to Set Aside Divorce Order Applied for by Mistake

While the courts have a range of powers to set aside orders, they will only exercise them in limited circumstances. In a somewhat surprising case that has attracted much comment, the High Court declined to set aside a final order of divorce that had been applied for by mistake.

A couple separated in January 2023, after more than 21 years of marriage. In October that year, while financial remedy proceedings were still ongoing, the wife's legal representatives inadvertently applied for a final order of divorce in respect of her instead of another client. After they realised their mistake, they applied to rescind the order. The husband resisted the application. By the time the case reached the Court, the order had already been purportedly set aside by a Deputy District Judge (DDJ).

The wife identified a number of means by which the Court could set aside the order. She argued that the matter had already been resolved by the DDJ and the couple remained married. The husband argued that a final order of divorce was a once-and-for-all order that could only be set aside if it was void or voidable.

The Court noted that the husband had not been formally served with notice of the application to rescind the order, and that his request for a Court hearing should have prevented the case from coming before the DDJ. The DDJ's decision to set aside the order therefore could not stand.

In considering whether the order should nonetheless be set aside, the Court noted that it was established by case law that jurisdiction to review decrees absolute or final orders of divorce is extremely constrained. There was no apparent authority for a final order of divorce being set aside or found to be voidable in the absence of procedural irregularity. The wife's legal representatives had been authorised to act for her and her lack of actual consent to the order did not make it voidable. The Court also observed that, even if it were voidable, there was a strong public policy argument in favour of certainty in final orders of divorce. The wife's application was dismissed.