Honey, my lawyer shrank the marriage!

APRIL 16, 2024

POSTED BY: WILLIAM HEALING

For French translation click here

In the rush to digitisation of law work, family lawyers now have a range of court portals to navigate to file documents for clients. Paper is virtually never used any more.

The decision of Williams v Williams, from the President of the Family Division in the High Court, given earlier in April 2024, highlights the limitations and pitfalls that await lawyers and their clients.

A London family law firm accidentally filed in October 2023 a divorce final order application for the wrong client. So the court administratively divorced Mrs Williams instead of Mrs X whom they had intended to divorce.

Sir Andrew McFarlane, a very senior judge of the High Court, has ruled that the fact that the Mrs Williams did not want the divorce at that time is irrelevant, and that her remedy is to sue her lawyers. The court has ruled that the divorce order is final and declaratory.

A straw poll in my law firm found overwhelmingly that the decision was harsh on the law firm and on Mrs Williams. I would go further and respectfully say it’s wrong.

The Court essentially held that the power of the court to set aside its own orders is extremely limited, and there are sound policy reasons for that – like finality of decision making. The fact of being divorced is declaratory to the world and should not easily be reversed.

But I do struggle with this for many reasons, and I suspect overwhelming members of my profession would also. I can think of at least six reasons:

  1. There was no complex litigation which the court would be overturning (the usual situation where courts don’t want to overturn something). The court would be overturning an accidental administrative step. So the finality of litigation point doesn’t really apply.
  2. Mr Williams has been handed a tactical advantage of some kind in purely accidental circumstances. He has fought for the divorce to be maintained (even though he did not make the divorce application!) and therefore presumably there must be some advantage to him. But why should he be handed that, when fairness may lie elsewhere?
  3. There is in most divorce cases an acceptance that for tax planning, and pension reasons the best stage to reach is the “conditional divorce” stage where the parties are one step from a final divorce, like a divorce waiting room, but not actually divorced until financial claims are resolved by the court. The court could have supported that convention and returned the parties to that stage.
  4. The court would only be returning the marriage to a conditional divorce decree state, the waiting room, not full marriage.
  5. The court can be willing to overturn conditional divorce orders back to full marriage, which is a much more consequential step  - see the Court of Appeal decision in my firm’s recent case of Cazalet v Abu Zhalaf.
  6. There is no case law on this point either way,  and no case law to suggest an “accidental” divorce which neither party intended, cannot be overturned. The court reversed that logic, and said because there was no case law on this point, it should not intervene to reverse the divorce order.

William Healing is an international family lawyer specialising particularly in cases with a Francophone or other European dimension. He is a dual national and bilingual speaker. Willam can be reached at william.healing@afpbloom.com or +44 20 7409 1222

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