The danger of ignoring divorce papers

Increasingly, the family court is willing to step outside of strict rules of procedure where it appears fair for it to do so. The decision made in the recent case of Ali v Barbosa demonstrates this.

The facts of the case were quite interesting, as the parties had married in Scotland, but were together for less than a year before separating. Ms Barbosa then filed for divorce proceedings in England.

She found it impossible to serve her divorce petition on Mr Ali, even when she tried to use a process server. The court suggested that she make an application for deemed service. This, in essence, is an application asking the judge to find that service has been good – normally because a petition has been acknowledged even if it has not been responded to. That is what Ms Barbosa did and a decree nisi and decree absolute then followed, after which time she remarried.

Four months after the English divorce concluded, Mr Ali issued his own divorce proceedings in Scotland, leading to a decree absolute being granted there just over a year later.

Both parties wanted to get divorced. Now they were both divorced. However, Mr Ali was Pakistani and his immigration status was dependent upon his marriage lasting a certain length of time.

If a decree absolute was granted less than 3 years after the marriage he would have to leave because his residence would be revoked. Therefore, if the English petition was valid he was in difficulty. If the Scottish petition was valid his residence would not be revoked as it was more than 3 years after the marriage.

Mr Ali therefore applied to the court saying that because Ms Barbosa had not properly complied with the rules, her divorce was void. Of course, that would present her with a real problem, because she had remarried.

After looking at the law, the court decided that it should look at the prejudice to each of the parties as being of central importance. It therefore held that although it did not believe there were procedural errors, even if there had been they would not have automatically rendered the divorce void.

On the basis of prejudice to the parties, Ms Barbosa would be extremely prejudiced because she had remarried. Although Mr Ali was prejudiced by the divorce, he would not have been able to resist it anyway. Therefore, although the court could set aside the divorce, it was not going to.

To practitioners, the answer to the above was probably relatively obvious. If, rather than avoiding Ms Barbosa’s petition, Mr Ali had defended it then almost certainly he could have kept the proceedings going for long enough so that the decree absolute occurred more than 3 years after he had married and, therefore, he would have been fine (as would she).

I think the moral of the story is always to get legal advice if your spouse is trying to divorce you. Never assume it is safe to ignore the papers.

If you would like advice on any of the issues discussed here then why not contact me on 01206 217320 or email me at philip.hoddell@birkettlong.co.uk for a free 15 minute conversation to see how we can help you.