Family Law Hub

Shahzad v Mazher & Anor [2020] EWCA Civ 1740

The judge had set aside the decree absolute, rescinded the decree nisi, and set aside the certificate of entitlement to a decree made in divorce proceedings between the husband, as petitioner, and the wife, as respondent. The husband had given the date of separation as 2006, which the judge had found to be fraudulent. The husband's appeal from this decision raised the issue of the circumstances in which a court had the power to set aside a decree absolute and, in particular, whether the power existed when it was alleged that a petitioner had advanced a false case when obtaining an undefended divorce as per s 1(1) and (2) of the Matrimonial Causes Act 1973. Moylan LJ stated that the result of the appeal might have been different, had the judge set aside the decree absolute on the basis only of fraud as to the date of separation, but, in his view, the judgment made it clear that the decree was also set aside because of procedural irregularity: the wife's application to rescind the decree nisi had been pending. The judge was plainly entitled to decide to set the decree aside, and also to rescind the decree nisi, set aside the certificate of entitlement and dismiss the petition. Having concluded that the husband's case in support of his petition was false, there was no reason to permit the petition or the orders to stand. The judge had been well placed to determine the wife's application and the orders which he made had been justified by his factual conclusions. Singh LJ and Popplewell LJ agreed. The appeal was dismissed.

Judgment, published: 20/12/2020

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Published: 20/12/2020

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