H sought to have set aside a decree absolute obtained on the petition of his now deceased wife on the ground of fraud, in that the petitioner had falsely sworn in her affidavit verifying the petition that the marriage had broken down irretrievably and that the parties had been living apart for at least two years. In fact (so he now alleged) the marriage had not broken down and the parties were and remained living together until the petitioner’s death.
Held: It was not to be set aside. Sir Stephen Brown P said: ‘In the case of the divorce proceedings presently under consideration, there was no want of jurisdiction or procedural irregularity of any kind. The proceedings were in all respects properly constituted. The alleged ‘defect’ now sought to be relied on by the plaintiff relates entirely to the nature and quality of the evidence before the court’.
. . And ‘As was pointed out in Bater v Bater [1906] P 209 a decree absolute affects status and is equivalent to a judgment ‘in rem.’ It is in the public interest that a decree absolute should be unimpeachable where no question arises as to the jurisdiction of the court pronouncing it or as to the procedural regularity which led to its being made.
In this case the plaintiff was a full, consenting party to the divorce proceedings. There was no want of jurisdiction in the court which pronounced the decree and no procedural irregularity. Both the plaintiff himself by his action in consenting to the decree, and the world at large recognised the decree during all the subsequent years which passed until the death of the wife . .
I have no doubt that this decree was validly made absolute and that this should stand against all the world . . it is not open to him in this court to seek to challenge the validity and binding effect of the decree absolute.’
Judges:
Sir Stephen Brown P
Citations:
[1992] Fam 1, [1991] 2 FLR 519
Jurisdiction:
England and Wales
Citing:
Cited – Bater v Bater CA 1906
The judgment of a divorce court dissolving a marriage is a judgment in rem, conclusively established the new status of the parties to the suit. A decree obtained in a foreign country by false evidence or by collusion in regard to the matrimonial . .
Cited by:
Cited – Rapisarda v Colladon (Irregular Divorces) FC 30-Sep-2014
The court considered applications to set aside some 180 petitions for divorce on the grounds that they appeared to be attempts to pervert the course of justice by wrongfully asserting residence in order to benefit from the UK jurisdiction.
Cited – Takhar v Gracefield Developments Ltd and Others SC 20-Mar-2019
The claimant appellant alleged that properties she owned were transferred to the first defendant under undue influence or other unconscionable conduct by the second and third defendants. The claim was dismissed. Three years later she claimed to set . .
Lists of cited by and citing cases may be incomplete.
Family
Updated: 23 March 2022; Ref: scu.537235
