What happens when there is no official record of the Decree Absolute?

Divorce|Family Law|August 6th 2019

This should not, of course, happen. At least in a perfect world. Sadly (or perhaps not), we don’t live in a perfect world. We live in a world where human errors occur, and where no system, however well designed it may be, can prevent them.

A Decree Absolute is, of course, an important document. It is the proof of the divorce. It may very well be required at some future date, not least should one of the parties wish to remarry.

In a perfect world the court should keep a record of the Decree Absolute (at least for a time – we will come to that in a moment), and should also send a copy to the Central Family Court, where it will be recorded for all time (well, hypothetically) on the central index of decrees absolute. If these steps are followed, there will always be an official record of the Decree Absolute.

Of course, both parties to the divorce will be sent a copy of the Decree Absolute, which they should retain. Sometimes, however, the whereabouts of the document will be lost in the mists of time. If that should happen, and if the party who lost the Decree Absolute should need a copy, then they should be able to obtain one, either from the court that made it, or from the Central Family Court.

Should.

In the recent case Power v Vidal, however, the husband’s (as I shall call him) request for a copy was met with a blank. Quite literally.

To go into a little more detail, the divorce proceedings were issued in the Willesden County Court in 1994, the Decree Nisi was pronounced in 1996, and was made Absolute on the 29th of January 1997. In January 2018 the husband wished to take steps to remarry. However, he could not locate his copy of the Decree Absolute certificate. He therefore wrote to the Willesden County Court seeking a copy of the Decree Absolute, and in April he made a formal application, paying a fee of £50.

The court was not able to locate a copy of the Decree Absolute certificate, nor was it able to supply the husband with the date on which the Decree Absolute was made.

The original court file appeared to have been totally destroyed in about 2013, notwithstanding that the agreed HM Courts and Tribunals Service (‘HMCTS’) record and retention policy, agreed by the President of the Family Division, is that the contents of divorce files are stripped and destroyed 18 years after the date of the final order, but that several key pieces of paperwork are retained longer, one of which is the Decree Absolute, which is kept for an additional 82 years, thus ensuring it is kept for 100 years in total.

Further to this, the Central Family Court was not, despite extensive searches, able to identify the Decree Absolute on the central index. It appeared that the original Decree Absolute was either never sent in early 1997 for entry on the index, or that it was lost in the post.

As Mr Justice Mostyn said, an extraordinary series of unfortunate mishaps.

So what to do?

The Willesden County Court contacted the wife by email in Australia (presumably the husband had her email address – quite what would have happened if there was no way to contact her, I don’t know). She stated that she did not know if she had kept a copy of the Decree Absolute certificate, but that if she had, then it was in storage 1000 kilometres away from her in another part of Australia. HMCTS arranged for the wife to travel to her storage facility and luckily she discovered that she had retained a certified copy of the Decree Absolute certificate, a copy of which she provided to the court.

But that, of course, was not an official copy. To rectify this situation Mr Justice Mostyn made a declaration that the document produced by the wife was an authentic and accurate copy of a certified copy of the original Decree Absolute, and that the marriage was, as shown by the copy of the certified copy of the Decree Absolute, dissolved on the 29th of January 1997. He also ordered that this declaration be placed on a substitute court file, to be kept by the Family Court at Willesden until the 1st of February 2097. Further, the Decree Absolute was also recorded on the central index.

Lastly, and unsurprisingly, Mr Justice Mostyn recorded that an email had been sent to the husband “expressing on behalf of the entire system sincere apologies for the delay in providing him with the copy of the Decree Absolute and for the administrative failures that had been exposed.”

The full judgment can be read here.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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