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The case MS v FS: Divorce and financial order set aside, as husband not aware of proceedings

Divorce|March 25th 2020

The case MS v FS: It is a fundamental principle of law that when anyone makes an application to the court any party affected by that application must be notified of it so that they can respond to it.

The only exception to this is when a court order is required urgently, for example in a case of serious domestic violence, although even then the order is only for a short duration, after which another hearing will take place after the other party has been notified.

But sometimes things go wrong.

What happens when the court goes ahead with a case when one party is unaware of the proceedings?

The case MS v FS: A remarkable case

The answer is to be found in the remarkable recent case MS v FS, which concerned a husband’s application to set aside a Decree Absolute and financial consent order.

The background of the case MS v FS, was as follows.

1. The parties married in 2002 and have two children, now aged 16 and 9.

2. According to the wife, the marriage broke down in 2009, before the younger child was born, and the parties separated in August 2009.

3. In December 2010 the wife issued divorce proceedings in Bow County Court, based on the husband’s unreasonable behaviour.

4. An Acknowledgment of Service was purportedly signed by the husband on the 30th of December, recording that he had received the divorce petition.

5. The wife applied for the Decree Nisi in January 2011. Decree Nisi was duly made in February 2011.

6. A consent order was applied for, purportedly signed by both parties. It provided for a transfer of the husband’s interest in the former matrimonial home to the wife. According to the wife, the husband agreed to this in exchange for her not seeking any contribution from him with regards to the children.

7. The consent order was made in February 2011.

8. The wife applied for the Decree Absolute, which was made in April 2011.

9. The wife instructed solicitors to deal with the transfer of the former matrimonial home to her. This was completed in June 2011, the husband apparently signing the transfer document.

10. We then move on to June 2017, when the husband issued divorce proceedings.

11. The wife informed the court that they were already divorced, and accordingly, the court dismissed the husband’s petition.

12. The husband’s solicitors then found out from the Land Registry that the former matrimonial home had been transferred to the wife.

13. The husband then issued his application to set aside both the Decree Absolute and the financial consent order, on the basis that he had not been aware of any divorce proceedings or financial settlement order transferring the former matrimonial home into the wife’s sole name. He denied all knowledge of signing any forms.

Determination

The matter of the case MS v FS fell to Mr Recorder Allen QC to determine.

A handwriting expert found that there was “very strong evidence” that the husband did not write the signatures on the Acknowledgment of Service or the consent order, and that there was “limited positive evidence” that the husband did not write the signature on the transfer document.

Preferring the husband’s evidence, Mr Recorder Allen found that the husband was unaware of the divorce and financial proceedings and did not sign the various documents, which were either signed by the wife, or by someone acting on her behalf.

As to the divorce, Mr Recorder Allen declined to set aside the Decree Absolute. The divorce was voidable as a result of the wife’s fraud, but it was not void. In any event, both parties had already remarried.

Unsurprisingly, the financial consent order, however, was set aside.

But that was not quite the end of the matter. In a separate judgment, Mr Recorder Allen ordered that the wife should pay 80% of the husband’s costs. Ouch.

You can read the full judgment on the case MS v FS, here, and the costs judgment is here.

Get in touch

If you would like any advice on the issues raised by the case Ms v Fs, 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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