AB v. CD - (16 Jan 2019)

An application to rescind can in certain limited circumstances be made to Court at first instance. It should not be made to the Court of Appeal.

Family

Present is an appeal brought by AB, the Appellant, in relation to an order dated 14 June 2018 of His Honour Judge sitting in the High Court granting a Decree Nisi in divorce proceedings brought by CD, the Respondent. The Decree was granted on the basis that, the marriage of the Appellant and the Respondent has irretrievably broken down on the ground that, the Appellant has behaved in such a way that the respondent cannot reasonably be expected to live with him.

There is a difference between an appeal and an application to rescind the Decree Nisi under Articles 10 and 11 of the Matrimonial Causes (Northern Ireland) Order 1978 and Rule 2.50 of the Family Proceedings Rules. An application to rescind can in certain limited circumstances be made to the court at first instance. It should not be made to the Court of Appeal. An application to rescind cannot be made by way of an application to this court. This court deals with appeals from decisions made at first instance, it does not make the initial decisions.

The service of the petition and related papers on the Appellant was deemed good. That was a decision of the Master. There has been no appeal from that decision apart from a half-hearted attempt orally by the Appellant that, he wished to appeal that decision. The Appellant was obstructing service of the petition and the related papers. The Appellant did obtain the papers on 28 August 2017 but chose to return them and he could and should have obtained them on 24 November 2017. The Appellant accordingly cannot complain that, he had not received the papers and we dismiss the ground of appeal which relies on that contention.

The Appellant was deliberately manipulating the court process so that he could delay and disrupt it and that the Appellant is personally to blame for that delay and disruption. The finding made by the judge that, the Appellant had plenty of time to defend the divorce petition was a finding which was impeccable and is to be commended.

The decision of the judge to refuse the application for an adjournment was not only one within the permissible range of decisions but that it is also one that all the members of this Court would also have made. There was a deliberate decision by the Appellant not to engage with the legal process so that he could thereafter disrupt and delay it. This amounted to, an abuse of the process of the court.

There clearly was a ground for a Decree Nisi. That ground was irretrievable breakdown as evidenced by the Appellant's unreasonable behaviour. There clearly was a hearing and evidence was clearly given to the trial judge. The matter was correctly listed as undefended because the Appellant had not entered an appearance or served an answer. The suggestion that, it was fully defended only came late on the day before the petition was due to be heard. The judge was entirely correct to refuse an adjournment application. Appeal dismissed.

Tags : DIVORCE DECREE VALIDITY