Dennis v Dennis (Queen's Proctor intervening)
| Jurisdiction | England & Wales |
| Judgment Date | 26 November 1999 |
| Court | Family Division |
Divorce – Decree absolute – Petitioner unaware of existence of decree absolute – Respondent remarrying – Whether decree absolute void or voidable – Whether Human Rights Act 1998 applying thereby requiring or enabling court to find decree absolute voidable – Whether county court’s reconsideration of circumstances in which decree nisi made absolute and subsequent referral to High Court ‘proceedings brought by or at the instigation of a public authority’ in which respondent could assert his rights under European Convention on Human Rights – Human Rights Act 1998, s 7(6)(a).
Human rights – Right to respect for family and private life – Right to marry – Husband granted decree absolute of divorce – Husband remarrying – County court realising decree absolute made incorrectly and prematurely – County court transferring matter to High Court for consideration – Whether reconsideration and transfer amounting to ‘proceedings brought by or at the instigation of a public authority’ in which husband could assert his Convention rights – Whether decision that decree absolute void and should be set aside amounting to a breach of husband’s rights under European Convention on Human Rights – Human Rights Act 1998, s 7(6)(a).
On 10 July 1998 the Hitchin County Court granted the petitioner wife a decree nisi of divorce. On 12 October 1998 the respondent husband applied for the decree nisi to be made absolute, which the county court purported to do the following day. The first time the petitioner discovered what had happened was in August 1999. In the meantime, believing that he had been lawfully divorced and that he had the capacity to contract a lawful marriage, the respondent had remarried in Singapore, and he had further relied on the decree absolute to enable his new wife to gain entry in to the United Kingdom. The petitioner contacted the county court, who acknowledged that the respondent’s application had been processed incorrectly and prematurely, and the district judge directed that the respondent’s application for decree absolute be listed for hearing as soon as possible. After hearing argument on 2 September 1999 the district judge transferred the matter to the High Court. At the hearing in November, although neither party actively wished the decree absolute granted on 13 October 1998 to be set aside, the judge concluded that he was bound by the Court of Appeal decision in Manchanda v Manchanda[1996] 1 FCR 733, where a decree absolute obtained in breach of the Matrimonial Causes Act 1973 and the Family Proceedings Rules 1991 was found to be void, and which
was incapable of being distinguished from the instant case. However, as the respondent had questioned, inter alia, whether the Human Rights Act 1998 had any application, and if so whether it either required or enabled the court to find that the decree absolute was voidable, the judge requested the assistance of the Queen's Proctor. At the resumed hearing on 14 March 2000 the respondent argued: (a) that it was clear from s 6(3) that a court was a ‘public authority’ for the purposes of the 1998 Act; (b) that he was a ‘person’ within the provisions of s 7(1) of the 1998 Act; (c) that the ‘proceedings’ referred to in s 7(1)(b) were expressed by s 7(6)(a) to include ‘proceedings brought by or at the instigation of a public authority’; and (d) that under s 22(4), s 7(1)(b) applied to proceedings brought by or at the instigation of a public authority whenever the act in question took place. On the bases of those provisions, the respondent contended: (1) that the proceedings were not brought by either party: the court of its own motion had listed an application to consider the validity of the decree absolute with a view to setting it aside; (2) any decision by the court, in that regard, that amounted to a breach of a Convention right was a decision of a public authority that would be rendered unlawful retrospectively when the 1998 Act came into effect; (3) therefore, when making the relevant decisions now a public authority was required to take account of that consequence; and (4) a decision in the present case to the effect that the decree absolute was void and must be set aside would be a breach of arts 8 and 12 of the European Convention on Human Rights, as set out in Sch 1 to the 1998 Act, and he and his new wife would be victims of that unlawful act. The respondent also requested that the Lord Chancellor’s Department pay all or part of the costs incurred by him and the petitioner as a result of the errors made by the Hitchin County Court. As the respondent had expressly reserved the right to argue in the Court of Appeal that Manchanda v Manchanda was wrongly decided, which might not be heard until after 2 October 2000 when the court would then be obliged to examine the respondent’s Convention rights, and the Queen's Proctor had argued what he submitted was the hypothetical post-2 October 2000 position, the judge decided to examine the respondent’s argument on its merits.
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a Section 7 of the 1998 Act, so far as material, is set out at p 121b–121c
b Section 22 of the 1998 Act, so far as material, is set out at p 121d–121e
c Article 8 of the European Convention on Human Rights, so far as material, is set out at p 121i–122a, post
d Article 12 of the European Convention on Human Rights, so far as material, is set out at p 122b, post
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Held – (1) The action of the county court in reconsidering, of its own motion, the circumstances in which the decree nisi was made absolute, and its referral of that issue to the High Court were not ‘proceedings brought by or at the instigation of a public authority’ within the meaning of s 7(6)(a) of the 1998 Act. The court’s ‘act’ in the present case was simply to schedule a hearing, having discovered that the divorce proceedings instituted by the petitioner had not been concluded by a valid order. There were no new proceedings separate from the divorce suit which suit remained in progress until the petition was disposed of either by process or withdrawal, discontinuance, dismissal or by an order being made upon it, save an order which was a nullity. If the proceedings were being determined when the 1998
Act was in force, the court, as a public authority under the Act, would be obliged to intepret the legislation compatibly with Convention rights. However, s 22(4) would continue to have no application since there were no proceedings brought by or at the instigation of a public authority.
(2) There had been no violation of or interference with any Convention right in the present case. There had simply been a failure to comply with the relevant statutory provisions which governed the manner in which a divorce was obtained. Had those provisions been properly applied the respondent would have been validly divorced and would have been entitled to remarry. Accordingly the fact that the decree absolute was void under the principles set out in Manchanda v Manchanda did not give rise to any breach of the respondent’s right under the 1998 Act.
(3) If, as was likely, the making of a decree absolute was an administrative rather than a judicial act, the Lord Chancellor’s Department could be held liable to pay the costs incurred by the parties in the referral of the application for the decree to be made absolute to the High Court, and on the merits there was a case for the Department to be held so liable. However, as the Department had not been represented in the proceedings, the question of costs generally would be adjourned with liberty to restore on notice to the Department if an amicable agreement about costs could not be reached, and if the petitioner and/or the respondent required the matter to be adjudicated.
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