Sir Andrew McFarlane unpersuaded
A leading family law firm inadvertently acquired a final divorce order for a client due to what was described as “clicking the wrong button”.
Vardags’ subsequent application to set aside the order on the basis that it had been made without its clients actual consent, was rejected by president of the Family Division Sir Andrew McFarlane.
The parties in the case separated in January 2023 after a marriage of more than 21 years. Whilst the wife could have applied for a final order of divorce from 21 September 2023, she had not in fact given consent to do so, the High Court heard.
Vardags argued that an unnamed member of staff had accidentally opened the case file for ‘Williams v Williams’, intending to open another file, and applied for a final order in error. Having spotted the mistake two days later, the firm applied to rescind the order.
The argument that this was someone simply “clicking the wrong button” on the online divorce portal wasn’t enough to persuade McFarlane, however.
“At the final stage, after clicking the request for a final order, a further screen comes up inviting the operative to confirm that this is indeed what is sought — again the name of the case is prominently displayed on this screen,” the judge said.
“There is no reported authority where a decree absolute or final order has been set aside in circumstances of complete procedural regularity,” he continued.
The argument raised that the order should be void, or at least voidable, for lack of consent was equally not well received.
The judge said the order was not “rendered voidable by the lack of actual consent from the wife, where her solicitors were generally authorised to act for her and the court was entitled to accept the application for the final order made by them as being validly made on her behalf”.
The judge continued:
“[The wife’s counsel] could not point to any authority to make good his assertion that the exercise by the solicitor of their apparent authority to act for the wife in applying for the order was vitiated by the fact that the wife had not consented, thereby making the order voidable.”
“As the authorities make clear, a final order made without procedural irregularity should stand for all the world.”
In a comment to Legal Cheek, Vardags’ president, Ayesha Vardag, said:
“This decision is the judicial equivalent of ‘the computer says no’. The state can’t be divorcing people because of an online clerical error. There has to be intention. When it’s been done by accident, obviously it should be voidable.”
“As it happens, this couple did want to get divorced in due course.”
“But there’s a bigger public policy issue here.”
“When a paper order has an error in it, it gets corrected under the ‘slip rule’. It gets resolved on an admin level. Because, well, obviously.”
“But apparently if it’s on the online portal it’s set in stone. As if from God himself. Although the court staff told us this has happened quite a few times before, and appears to have been sorted out without any of this drama.”
“It’s form over substance with no regard for common sense or justice. If the person on the Clapham Omnibus heard about this they’d say the law is now, definitively, an ass.”
