Judge refuses to set aside a Final Order of Divorce.

By Anna Patsalides

Associate Solicitor

17 April 2024

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There has been a lot of media coverage concerning the case of Williams v Williams [2024] EWHC 733 (Fam).  This case has caused much debate between lawyers about whether the Judge and President of the Family Division, Andrew McFarlane, reached a fair decision in not allowing a Final Order of Divorce to be set aside.

The circumstances of the case are as follows: The wife was represented by Vardags and her solicitors had issued divorce proceedings on her behalf. The Conditional Order of Divorce was made by the Court  (the first formal stage of divorce proceedings) sometime earlier and on 3 October 2023 the wife’s solicitor applied for a Final Order of Divorce, in error. The wife’s solicitor had intended to apply for the Final Order of Divorce in respect of another case.

The solicitor had applied for the Final Order of Divorce using the Court’s online portal, which is the platform used for all divorce cases issued after 13 September 2021. It was set up to streamline the divorce process but arguably the portal makes it far easier for mistakes such as these to occur.  Prior to the introduction of the Court portal, divorces applications were submitted by way of paper application and therefore mistakes such as these would have been much less likely to occur.

A family law solicitor may have a number of different divorce proceedings which are live on their online portal at any one time and in order to move a case forward they will be required to select a particular case.  In this instance, it appears that the solicitor in question essentially clicked on the wrong case on their online portal and proceeded to apply for the Final Order of Divorce in the wrong matter. Applying for a Final Order of Divorce before a financial settlement is reached can have very serious consequences if one party dies before a financial order is made by the Court, especially in relation to pension issues.

After realising the mistake, the wife’s solicitor applied to the Court asking the Court to rescind the Final Order of Divorce and in the first instance the Judge agreed such that the Final Order of Divorce was rescinded, however no notice of the Final Order being rescinded was given to the husband. The husband appealed the decision for the Final Order to be set aside and on appeal, the Judge ordered that the Final Order of Divorce should stand and should not be set aside.

Why has the case attracted so much attention?

The case has highlighted that a simple error, such as the one made by the wife’s solicitor in this case, could have a very detrimental impact on the wife’s position, financially.

Where a Final Order of Divorce is made before financial matters have been finalised, this can have very serious consequences in the event of the death of either party. For example, in this case, in the event of the death of the husband, because the parties are no longer married, the wife would no longer be entitled to any widow’s pension in relation to the husband’s pension(s).

The Judge allowed the appeal against the Final Order being set aside because, despite the fact the wife’s solicitor did not have specific authority from the wife to apply for the Final Order of Divorce, they were instructed to act and therefore there was no procedural irregularity in making the application for the Final Order of Divorce. The Judge made the point that if he had not allowed the appeal such that the Final Order of Divorce remained set aside, this could set an unwanted precedent potentially allowing any party within such proceedings to argue after the event that an application for a Final Order of Divorce was made in error.

If you are in the process of or considering divorce and have not considered how your matrimonial assets should be divided, it is important that you seek legal advice.  Please get in touch today on 01727 845245 or contact anna.patsalides@taylorwalton.co.uk.

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