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DIVORCE: Leake v Goldsmith [2009] EWHC 988 (Fam)

Date:14 MAY 2009

(Family Division; Munby J; 8 May 2009)

An application for decree nisi came before the court in unusual and unfortunate circumstances. Following a successful FDR, it had emerged that the district judge had not yet granted decree nisi, having noticed that the marriage certificate was not on the file. The parties asked the FDR judge to deal with the divorce himself, and he agreed. However, the FDR judge then declined to grant a decree on the wife's evidence, because the address given in her oral evidence was not precisely the same as the address given in the petition. The judge therefore gave the wife permission to amend her most recent petition (she had issued two petitions, the second replacing the first), and directed that the case be listed for pronouncement of decree nisi on the following day, the judge being otherwise satisfied that the marriage had broken down irretrievably. Unfortunately, court listed the wrong petition for pronouncement, that is to say it listed the earlier of the two petitions. This was not spotted and both the decree nisi and the Matrimonial Causes Act 1973, s 41 certificate were therefore granted with the wrong petition number; this problem was later identified by the district judge and as soon as it came to his attention the FDR judge alerted the parties to the problem.

There was no scope for amending the order under the slip rule. A consent order would be made (i) to set aside the original orders; (ii) to pronounce a decree nisi on the wife's second petition, as amended; (iii) to grant a new s 41 certificate; and (iv) to abridge the time for decree absolute to 7 days. In the event, because both parties to the marriage were still alive, no major legal issue arose in the case. There had been no need to explore the possible legal implications of the mishap: it was possible that the original decree was valid, but it was also possible that it was not.