F. v F
| Jurisdiction | England & Wales |
| Date | 1970 |
| Year | 1970 |
| Court | Probate, Divorce and Admiralty Division |
Husband and Wife - Divorce - Decree - Decree absolute - Validity - Child born between date of petition and decree nisi - Decree made absolute in absence of declaration as to child's welfare - Husband “remarried” - Whether decree absolute valid -
The parties were married in November, 1955. Three children were born before the parties separated in October, 1966. In January, 1967, the wife filed a petition for divorce on the ground of adultery in which she set out that there were three children of the marriage. On April 27, 1967, another child of the marriage, S., was born. On July 12, 1967, in an undefended suit, the wife obtained a decree nisi of divorce, the trial judge expressing himself satisfied with the arrangements for the care and upbringing of the three children named in the petition. The decree nisi was made absolute on October 17, 1967, the court still having no knowledge of the existence of the child S. On March 1, 1969, the husband married the woman named, legitimating their two children. When on April 21, 1969, the wife sought maintenance for the four children of the marriage the existence of S. was first appreciated.
On the wife's summons for leave to amend her petition to set out the birth of S., and for directions as to the decree absolute:—
Held, that the failure to comply with section 33 of the Matrimonial Causes Act, 1965, rendered the decree absolute voidable; that innocent third parties having acquired rights and interests in pursuance of its ostensible validity, and no party having any superior equity, it was too late to set it aside; and that, as there was no call to give the wife any of the relief sought in the summons, it would be dismissed (post, p. 354D–F).
The following cases are referred to in the judgment:
Arrow Shipping Co. v. Tyne Improvement Comrs., The Crystal [
B. v. B. (Practice Note) [
Cherry v. International Alloys Ltd. [
Coutts & Co. v. Inland Revenue Comrs. [
Dimes v. Grand Junction Canal (Proprietors) (
Heydon's Case (
Howard v. Boddington (
McPherson v. McPherson [
Marsh v. Marsh [
Meier v. Meier [
Montreal Street Ry. Co. v. Normandin [
N. v. N. (
P. v. P. and J. [
Practice Direction (Divorce Decree Absolute: Protection of Children) [
Reg. v. McDevitt (
Scott v. Scott [
Thynne v. Thynne [
Wiseman v. Wiseman [
Woolfenden v. Woolfenden [
No additional case was cited in argument.
SUMMONS.
The facts are fully stated in the judgment.
F. J. Aglionby for the wife.
The husband appeared in person.
Sir Arthur Irvine Q.C., S.-G. and Basil Garland for the Queen's Proctor as amicus curiae.
October 30. SIR JOCELYN SIMON P. read the following judgment. This is a summons by a wife petitioner in a divorce suit that she may be given leave to amend her petition to set out therein the fact of birth to her on April 27, 1967, of a fourth child, S. (in addition to the three mentioned in the petition); that the court should express itself as satisfied as to the arrangements for the children; and that directions should be given as to the decree absolute.
The facts which lie behind the application are as follows. The parties to the suit were married on November 19, 1955. The eldest child, R., was born on May 28, 1956; the second C., on December 17, 1959; and a third, L., on January 20, 1961. In October, 1966, the parties separated. Information came to the wife which caused her on January 20, 1967, to file a petition for divorce alleging that the respondent husband had committed adultery with a named woman. It is alleged that the adultery commenced in March, 1965, and that on December 5, 1965, the woman named gave birth to a child of whom the husband was the father. The petition set out that there were three children of the family (those I have already indicated), which was perfectly correct at that time. In addition to dissolution of the marriage the petition prayed for the custody of those children and for the maintenance of the wife and the three children. On April 27, 1967, the child S., who is the occasion of the present application. was born to the wife; but the petition was not amended to deal with her. It came before Judge Reid, sitting as a special commissioner of the High Court, on July 12, 1967, in the undefended list. The judge was satisfied as to the proof of adultery and pronounced a decree nisi of divorce. He heard evidence relating only to the three children who were named in the petition, and was satisfied as to the arrangements made for their welfare: this was correctly noted in the court file. An order purporting to make the decree absolute was made on October 17, 1967, the court still having no information about the birth of S. on April 27, 1967. On March 1, 1969, the husband went through a ceremony of marriage with the woman named. They have now two children, both born before the ceremony, but legitimated by it provided it constituted a valid marriage. On April 21, 1969, the wife filed an affidavit, asking for maintenance of all of her four children. It was then, presumably, that the fact of S.'s birth, and the failure to disclose it at the trial, and the possible consequent effect on the validity of the decree absolute, first came to the knowledge of anyone capable of appreciating the possible consequences. In the result the present summons was issued.
The matter turns on section 33 of the Matrimonial Causes Act, 1965. That section occurs in Part III of the Act, which is headed “Protection of children.” It reads as follows:
“(1) Notwithstanding anything in Part I of this Act but subject to the following subsection, the court shall not make absolute a decree of divorce or nullity of marriage in any proceedings begun after December 31, 1958, or make a decree of judicial separation in any such proceedings, unless it is satisfied as respects every relevant child who is under 16 that — (a) arrangements for his care and upbringing have been made and are satisfactory or are the best that can be devised in the circumstances; or (b) it is impracticable for the party or parties appearing before the court to make any such arrangements.
(2) The court may if it thinks fit proceed without observing the requirements of the foregoing subsection if — (a) it appears that there are circumstances making it desirable that the decree should be made absolute or should be made, as the case may be, without delay; and (b) the court has obtained a satisfactory undertaking from either or both of the parties to bring the question of the arrangements for the children before the court within a specified time.”
“Relevant child” is interpreted in section 46. It means “a child who is — (a) a child of both parties to the marriage in question; or (b) a child of one party to the marriage who has been accepted as one of the family by the...
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