Husband fails to have divorce set aside

Divorce|October 31st 2019

Divorce obviously effects a change of status upon the parties. One moment they are married, and the next they are single and, in particular, free to remarry. As we will see in a moment, a decision as to whether divorce is valid can have critical consequences.

Immigration status

And those consequences are not just limited to remarriage. In the recent High Court case Ali v Barbosa the husband sought to have a divorce set aside, as it had a crucial effect upon his immigration status.

The relevant facts in the case were as follows. The parties were married in Scotland in April 2014. The wife is a Portuguese national and the husband is a Pakistani national. The wife, therefore, has EU rights, entitling her to reside in this country. The husband, on the other hand, was only entitled to reside here by virtue of being married to a European Economic Area (‘EEA’) national. However, and this is the critical point if the husband was married to an EEA national for in excess of three years then he could retain his right of residence.

The wife issued divorce proceedings in England in June 2015, giving an address in Edinburgh as the husband’s address for service of the divorce papers. The husband accepted that he lived at that address from March 2015, leaving on the 28th of October 2015. It was the wife’s case that the husband either continued to live at the address or had access to it after that date.

The court sent the papers to the Edinburgh address, but they were returned to sender. The wife’s solicitors then instructed a process server to serve the papers upon the husband. The process server attended the address on the 30th of October. He received no reply and left a calling card. On the 2nd of November (incorrectly stated as 22nd in the judgment), he received a telephone call from a man who identified himself as the husband and said he had received the calling card (the husband disputed that he was the person at the other end of the telephone). The process server told the husband that he had divorce papers for him, and agreed to deliver them to him on the 5th of November. However, there was again no reply when he attended the address on that day. The papers were left at the address.

The wife then applied to the court for an order that the husband be deemed to have been served with the divorce papers. The order was made, but the husband claimed not to have received it, having been in Pakistan at the time.

The wife then proceeded with the divorce, and a decree absolute was pronounced in May 2016. The wife then remarried, later in 2016.

Scottish divorce

The husband issued divorce proceedings in Scotland in September 2016, and in November 2017 the Scottish court pronounced the decree absolute.

It will be noted that if the ‘wife’s divorce’ was valid, then the husband would not have been married for the requisite three years to give him a right of residence (the Scottish divorce would be a nullity, the parties having already divorced), whereas if the wife’s divorce was invalid, then the Scottish divorce would have been valid, and the husband would have been married for the requisite three years.

The husband applied to the English court to have the English divorce set aside, on the basis that he had not been properly served with the divorce papers, and the order for deemed service should never have been made, as there had been a failure to comply with the rules. The application was heard by Mrs Justice Lieven in the High Court.

Prejudice

Without boring the reader with the technical details, Mrs Justice Lieven found that the husband had not been prejudiced by any failure to server the divorce papers upon him (and there was some evidence to suggest that he was seeking to avoid service), as it was not being suggested that if he had received the papers in October 2015, he would have had any grounds to resist the divorce. Yes, he was prejudiced by the fact that if the English decree absolute stood, the marriage did not last for three years, which was important in immigration law, but the issue there was not whether he was prejudiced by the failure to serve.

On the other hand, the wife (and her new husband and their child) would suffer extreme prejudice if it transpired that she was still married when she entered her second marriage.

In the circumstances Mrs Justice Lieven found that any failure to fully comply with the rules did not render the divorce orders void, but merely ‘voidable’, and she declined to exercise her discretion to order them to be set aside.

You can read the full judgment here.

Get in touch 

If you would like any advice on divorce or other family law issues please do contact our Client Care Team to speak to one of our specialist divorce lawyers 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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