Nadeem Shahzad v Nusrat Mazher
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moylan,Lord Justice Singh,Lord Justice Popplewell |
| Judgment Date | 18 December 2020 |
| Neutral Citation | [2020] EWCA Civ 1740 |
| Docket Number | Case No: B6/2019/3022 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 December 2020 |
[2020] EWCA Civ 1740
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT
SITTING AT GUILDFORD
HIS HONOUR JUDGE NATHAN SITTING AS A
DEPUTY HIGH COURT JUDGE
BV17D13109
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moylan
Lord Justice Singh
and
Lord Justice Popplewell
Case No: B6/2019/3022
Mr D Timson (instructed by Advocate) for the Appellant Husband
The Respondent Wife in person
Mr S P G Murray (instructed by the Government Legal Department) for the Queen's Proctor
Hearing date: 14 th October 2020
Approved Judgment
The husband (as I will call him) appeals from the order made by His Honour Judge Nathan (“the judge”) on 15 November 2019 by which he set aside the Decree Absolute; rescinded the Decree Nisi; and set aside the certificate of entitlement to a decree made in divorce proceedings between the husband, as Petitioner, and the wife, as Respondent. He also dismissed the Petition.
In his Petition, issued by the Bury St Edmunds Divorce Unit on 4 May 2017, the fact relied on by the husband, as establishing that the marriage had irretrievably broken down, was that the parties had been separated for five years having last lived together on 12 May 2006.
The substantive issue raised by this appeal is the circumstances in which a court has power to set aside a decree absolute and, in particular, whether the power exists when it is alleged that a petitioner advanced a false case, to establish one of the statutory facts under s.1(2) of the Matrimonial Causes Act 1973 (“the 1973 Act”), when obtaining a divorce under the special procedure (i.e. the process by which an undefended divorce is determined). A, very much, subsidiary issue is whether the judge was right in the circumstances of this case to rescind the Decree Nisi and set aside the certificate.
The judge's judgment on 15 November 2019 was given in two parts. The first dealt with an allegation of fraud, namely, as found by the judge, that the husband had falsely given the date of separation as 2006 when it was, in fact, 2016. The second dealt with an issue of procedural irregularity, namely that the decree had been made absolute despite the wife's application for the decree nisi to be rescinded not having been determined, contrary to r.7.32(2) of the Family Procedure Rules 2010 (“the FPR 2010”).
The husband applied for permission to appeal when he was acting in person. He relied on a number of somewhat diffuse grounds. The sole ground of appeal on which I gave permission to appeal, as formulated by me in the order giving permission to appeal, was that, in summary, the judge should not have set the Decree Absolute aside because there was no legal basis for doing so in this case.
When I gave permission to appeal, I only had the first part of the judgment which, as referred to above, dealt with the issue of fraud. I did not have the second part which makes clear that the judge's decision was based, not only on the issue of fraud, but also because of procedural irregularity.
The only ground for divorce under s.1(1) of the MCA 1973 is that the marriage has irretrievably broken down. At present, by s.1(2), the court can only find this established if the petitioner proves one of the five “facts” set out in subsections (a) to (d); the last of these is that the parties have been separated for at least five years. It is appropriate to note that, under the Divorce, Dissolution and Separation Act 2020 (“the 2020 Act”), this will change and, as a result when it is in force, aspects of this judgment will become irrelevant. This is because irretrievable breakdown will not depend on one of the facts set out in s.1(2) of the 1973 Act being proved but will be conclusively proved by a statement to that effect: s.1(3) of the 1973 Act as substituted by the 2020 Act.
At the end of the hearing, we informed the parties that the appeal would be dismissed. This judgment sets out my reasons for agreeing with that decision.
Background and Procedural History
The parties married in Pakistan on 24 April 2003. They lived together in England following the husband's arrival here in August 2003. There is one child of the marriage.
In 2016 the wife filed a judicial separation petition. On 2 March 2017, the court granted a decree of judicial separation.
As referred to above, the husband's divorce Petition was issued on 4 May 2017. It is dated 8 March 2017 but had initially been returned by the court because it had not been adequately completed in respect of “the facts”, namely the section dealing with the fact(s) relied on to establish irretrievable breakdown. The history of the proceedings thereafter appears to be as follows. This may not be complete and in some respects is based on assumptions.
In an email to the wife dated 8 February 2019, a court official at Bury St Edmunds said that a copy of the Petition and the Notice of Proceedings had been sent to her on 4 May 2017. There is no direct reference to the Acknowledgement of Service but the email did state that the “Notice of Proceedings instructs you to complete the form including whether you intend to defend the case and return it within 14 days”. The “form” must be a reference to the Acknowledgement of Service.
The wife has contended that she did not receive these documents. This was not an issue which was addressed below, probably because the court later made an order for, what was described as, “deemed” service. However, it was briefly addressed during the course of the hearing before us and the point was made by Mr Timson that, when the wife did seek to file the Acknowledgment of Service out of time, she did so on a form which had the names of the parties, the case number and the details about the court (including who had produced the document) included in print, whereas the details filled in by the wife were by hand. This, he suggested, strongly supported the conclusion that the formal elements of the document had been completed by the court and that, accordingly, the Acknowledgement of Service had been served on the wife.
It is not necessary for us to determine this issue although I note that the judge referred to the wife as having “buried her head in the sand”. However, given the subsequent history in this case, I would emphasise the importance of a respondent to a divorce petition, who has a legitimate reason for contesting the divorce, completing and returning the acknowledgement of service within the required time and filing an answer. I say this, emphatically not to encourage a respondent to defend a petition, but to draw attention to the fact that, if they do not respond to the petition as required under the FPR 2010, they are likely to find that they are unable later to contest the proceedings and the court will make a decree of divorce.
On 23 October 2017, the husband applied for an order for deemed service (I deal below with the fact that the rule as to deemed service does not apply to petitions). This was initially refused on the basis that there was “no evidence that the Respondent has received the petition”. The petition had been sent by the husband to the wife's solicitors but they had replied on 12 September 2017 that they were instructed solely in respect of the judicial separation proceedings and financial remedy proceedings.
On 3 April 2018, the husband informed the court that the petition had been served on the wife by a process server who had provided him with “proof” of this. He asked whether, as he had been advised by his legal adviser, because the petition had been served by the process server and the wife had “not acknowledged it”, he could apply for a decree nisi or whether he had to apply again for an order for deemed service.
In an email dated 5 May 2018 an administrative officer at Bury St Edmunds replied stating that if the petition, notice of proceedings and acknowledgement of service form had all been personally served on the wife and “the process server has signed a statement confirming this”, there was “no need to apply for deemed service”. The husband could simply send the statement from the process server with his application for a decree nisi.
It may be that the husband did not receive the court's response until 24 May 2018 because the email of 5 May was then sent again in response to a further enquiry from him. However, in the meantime, on 17 April 2018 the husband again applied for an order for deemed service supported by a statement from a process server. This statement only refers to the petition as having been served (and only the petition was attached to the statement) and not the other documents required by r.7.8 of the FPR 2010, as referred to in the email from the court (the notice of proceedings and the acknowledgement of service form).
As a result of the wife's failure to file an acknowledgement of service indicating an intention to defend the petition and/or any answer, the petition proceeded as being undefended. On 8 June 2018 the husband applied for a decree nisi. He provided a statement as required by r.7.19.
On 18 June 2018 an order was made for “deemed service”. It is not clear why this order was made because the husband appeared to be contending that the wife had been served. Further, the term “deemed service”, as used in the FPR 2010, would not appear to apply in the circumstances of this case. I set out the provisions concerning service below because, although this is not an issue which arises...
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