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Dingoes ate my decree absolute

 

Well of course they didn’t.  But in this case, decided by Mostyn J, a man who got divorced in 1997 and wanted to remarry asked the Court for a copy of his decree absolute. The Court had a look and declared that it was being economical with its visibility.

 

His former wife was asked whether she had a copy, and she replied that she might have one, in storage.  Having moved to Australia, the storage unit was 1000 kilometres from her home, so it wasn’t a small favour to ask.

 

As Mostyn J stated, the Court have duties to keep the divorce papers

  1. Specifically:
    1. a. The original file appeared to have been totally destroyed in about 2013 notwithstanding that the agreed HMCTS record and retention policy, agreed by the President of the Family Division, is that the contents of divorce files are stripped and destroyed 18 years after the date of the final order (or resolution of any subsequent complaint) but that several key pieces of paperwork are retained longer, one of which is the Decree Absolute which is kept for an additional 82 years (thus ensuring it is kept for 100 years in total).

b. A search for the original file in the TNT archive storage depot in Branston yielded no trace of it.

c. The Office for National Statistics stated that they had checked their stores and all paper Decree Absolutes from 1997 had unfortunately been destroyed. Nor had they retained a microfiche copy of this Decree Absolute[1].

d. The Decree Absolute team at the Central Family Court was not, despite extensive searches, able to identify the Decree Absolute on the central index maintained pursuant to the Family Procedure Rules, rule 7.36(1) or its predecessor the Family Proceedings Rules 1991, rule 2.51(3). It would appear that the original Decree Absolute was either never sent in early 1997 to Somerset House for entry on the index, or that it was lost in the post.

On any view, this is an extraordinary series of unfortunate mishaps.

 

As luck would have it, HMCS funded the trip to the storage facility, and the ex wife’s copy was there. So the Court gave a declaration certifying it to be a true copy, and the man was able to remarry.

 

  1. It is therefore necessary for a declaration to be made by the High Court to put the position on a footing as close as possible to that which would obtain had the file not been destroyed and the original Decree Absolute lost.
  2. In Egeneonu v Egeneonu [2017] EWHC 43 (Fam), [2017] 2 FLR 1181, [2017] 2 FCR 130 Sir James Munby P confirmed that the High Court possessed an “inherent declaratory jurisdiction”, in that case to declare whether or not the father’s conduct in abducting the children to Nigeria amounted to a criminal contempt of court. In Mazhar v The Lord Chancellor [2017] EWHC 2536 (Fam), [2018] 2 WLR 1304 Sir Ernest Ryder SPT was of the view that the power to grant declarations was statutory in origin. In Bank Of New York Mellon, London Branch v Essar Steel India Ltd [2018] EWHC 3177 (Ch) Marcus Smith J likewise identified the source of the power to grant a declaration as being statutory; he identified section 19 of the Senior Courts Act 1981. That provides at section 19(2)(a), as did its predecessors, that “there shall be exercisable by the High Court all such other jurisdiction as was exercisable by it immediately before the commencement of this Act”. Thus, there was vested in the High Court all the powers exercisable by the common law courts and the courts of equity prior to the enactment of the Judicature Acts. Those powers clearly included the power to grant declarations, which had originated in the Court of Chancery. I think this is what Sir James Munby P was referring to when he spoke of the High Court possessing “an inherent declaratory jurisdiction”. Plainly, the fact that for some reason CPR rule 40.20 is not replicated in the Family Procedure Rules does not detract from the clear existence of the declaratory jurisdiction.
  3. The cause here was automatically transferred to the Family Court at Willesden on 22 April 2014 by virtue of article 2 of The Crime and Courts Act 2013 (Family Court: Transitional and Saving Provision) Order 2014, SI 2014 No. 956.
  4. I order that the cause is transferred to the High Court for the purposes of exercising the declaratory jurisdiction. Immediately following the making of the declaration the cause will be transferred back to the Family Court at Willesden.
  5. I am fully satisfied on the material before me, and I so declare, that:
  6. a. the document produced by the respondent is an authentic and accurate copy of a certified copy of the original Decree Absolute; and

b. the marriage of the petitioner and the respondent was, as shown by the copy of the certified copy of the decree absolute, dissolved on 29 January 1997.

 

Not a sterling endorsement of the Court’s record-keeping abilities. Nor is there any part of the judgment indicating that the legal costs that the husband incurred because the Court failed in its responsibilities would be paid for by HMCS

Power v Vidal 2019

https://www.bailii.org/ew/cases/EWHC/Fam/2019/2101.html

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