Final Divorce Granted By Mistake

Final Divorce – what happens if it is granted by ‘mistake’?

What is the final divorce order?

A final divorce order formally dissolves a marriage, bringing it to an end. This used to be called Decree Absolute but following the new ‘no fault’ divorce law in April 2022, some of the terminology has been changed.

Does it make a difference when I apply for the final divorce order?

Most couples will ask the court for the final divorce order at the conclusion of their case, for example, when a financial agreement has been reached. The are many reasons for this but a common one is that if a divorce is granted before a financial settlement, it could cause financial prejudice eg. loss of pension benefits to a surviving spouse in the event of the other party’s untimely death.

What happens if the final divorce order is granted by mistake?

In a recently reported case of Williams v Williams a firm of divorce solicitors used the family court’s online divorce portal to apply for the final divorce order for another client but inadvertently opened the Williams case file and then proceeded with the divorce.

Following the application by the wife’s solicitors to terminate the marriage, it took the family court only 20 minutes to process this and grant the final divorce order. By the time the error was spotted it was too late. The final divorce order was granted and the High Court ruled there were insufficient grounds for the court to set it aside.

There was no precedent for this, but the judge was very reluctant to allow future couples to come back to court and argue that there was some type of mistake. The court held:

“There is strong public policy interest in respecting the certainty and finality that flows from a final divorce order and maintaining the status quo that it has established”

If I apply to the family court for the final divorce order, can I later change my mind?

The short answer is ‘probably not’. We can see from this case of Williams v Williams that:

• Following an application for the final divorce order the court can grant this the same day, even within minutes; and

• Once granted, the family court will be loathe to set it aside, wanting instead to uphold the principle that once granted, the divorce order is final and certain.

It may be possible to intercept the application before the court considers it and ask for permission to withdraw it. On rare occasions it can still be possible to set aside or rescind the final divorce order. Family law advice would be needed to consider the individual facts and to advise on the merits of this.

What do we learn from this?

The application for the final divorce order or decree absolute is often seen as a routine and procedural, almost administrative, step. The task can often be delegated to a junior member of the team but as this case of Williams underscores, it can have potentially important and serious consequences if, for example, the couple are divorced before the financial issues are agreed.

Family law advice is crucial at each step of the way. You should work as a team with your family lawyer, so you can be informed of your options, the timings of an family law applications, the risks involved, and so you can make the best decision for you.

We are a specialist team of family law solicitors who specialise in divorce, separation, financial agreements and children cases. We also deal with international family law. Our offices are in Manchester, Altrincham, Knutsford and Wilmslow and we also see clients in London. We are ranked in Tier 1 of the Legal 500 for 2023/24 and are leaders in this field of family law.