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April 16, 2024updated 17 Apr 2024 6:14pm

‘Computer says no’ divorce case divides family lawyers

Family law experts give their verdicts on a judge's decision to reject an application to rescind a final divorce order that was made by 'clicking the wrong button'

By Suzanne Elliott

The ‘computer says no’ divorce case that made headlines this week has divided opinion among family lawyers, with many agreeing the judge’s decision was ‘very harsh’.

Vardags used an online portal to mistakenly apply for a final divorce order for a couple who were still in the process of agreeing the final financial arrangements for their separation at the time the application was submitted in October 2023.

Lawyers had intended to apply for a divorce for another client but a member of staff had accidentally opened the file for this couple, identified as ‘Mr and Mrs Williams’.

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[See also: Divorce transparency rules at risk of exploitation]

The relatively new online divorce registration system granted the divorce order within 21 minutes. Vardags, representing the wife, realised the mistake two days later and applied to the high court to rescind the final divorce order. The team argued that as it had been made in error by someone ‘clicking the wrong button’, the final divorce order should be ‘set aside’.

Julian Ribet from Ribet Myles, acting on behalf of Mr Williams, objected ‘on the basis that the divorce had been properly applied for, and was therefore effective, notwithstanding the fact that the wife’s solicitors had in fact applied on behalf of the wrong client’.

Sir Andrew McFarlane, president of the family division, rejected the application by Vardags, saying: ‘There is a 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.’

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Ribet Myles added that the confusion surrounding the situation meant that ‘for a number of months our client did not know whether he was divorced or not.’

‘A very harsh judgement’

The case has divided opinion among advisers in the Spear’s network.

Ayesha Vardag, founder and president of Vardags, has stood by the member of staff who made the mistake and said the judge had made a ‘bad decision’ that effectively meant if ‘the computer says no, you’re divorced’.

‘When a mistake is brought to a court’s attention, and everyone accepts that a mistake has been made, it obviously has to be undone,’ she said. ‘There has to be intention on the part of the person divorcing, because the principle of intention underpins the justice of our legal system.

[See also: Family law firms AFP and BloomBudd announce surprise ‘super-boutique’ merger]

‘We’ve heard from the court staff that this happens a fair bit with the new online system. And it should just have been fixed as usual. But here the husband inexplicably took issue and the judge decided, effectively, “the computer says no, you’re divorced”.’

She added: ‘That means that, for now, our law says that you can be divorced by an error made on an online system. And that’s just not right, not sensible, not justice.’

James Stewart, a Spear’s Top Flight family lawyer and partner at Penningtons Manches Cooper agreed it was a ‘very harsh judgement’. ‘It was an error of fact, which could have been rectified. And I honestly believe that unless the interests of third parties have been adversely affected, it should have been rectified.’

He said that while the couple was seeking a divorce, if they had not agreed a final financial settlement, the decision not to rescind could have financial ramifications for one of the parties. ‘I don’t know the ins and outs of this case, but it does matter,’ he added.

[See also: Spear’s Awards 2023: David Allison is named Lawyer of the Year – Family Law]

Stewart rejected the argument that overturning the decision would result in an ‘avalanche’ of similar cases. ‘It’s a very unusual situation,’ he said. ‘I think when it’s an error of fact, or a mistake of fact, which doesn’t hurt anybody, it could have been rectified.’

William Healing, a Spear’s Top Recommended family lawyer and partner at AFP Bloom, wrote in a blog post: ‘A straw poll in my law firm found overwhelmingly that the decision was harsh on the law firm and on Mrs Williams. I would go further and respectfully say it’s wrong.’

The view was echoed by Hannah Greene, a senior associate and collaborative lawyer at Family Law in Partnership, who added: ‘The court is able to make clerical errors and then clear them up once, that courtesy wasn’t extended to the member of staff who made the order… The general industry view was slightly shocked because you shouldn’t be able to get divorced that easily.’

‘The decision was correct and well-reasoned’

However others, including Spear’s Top Recommended family lawyer Nick Manners, partner Payne Hicks Beach, believes Judge MacFarlane’s decision to reject the Vardags application was ‘correct and well-reasoned’.

‘Human error is unfortunate and does happen. Any family lawyer will feel great sympathy for the practitioner involved, as well as the couple who have been caught up in this matter,’ he told Spear’s.

[See also: Family law in 2023: the divorces, milestones and landmark cases that shaped the year]

‘However, as lawyers we are duty bound to respect the detail of the law. The judge’s decision was correct and well-reasoned. He correctly applied the legal and procedural precedent that was binding upon him.’ He added: ‘Practically speaking, this might encourage a review of the online portal to ensure such an error could never happen again’.

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