This was an interesting case about an error in a court order that meant the order had unintending effect.
In 2014, after nearly 29 years of marriage, the husband, now aged 60, and the wife, now aged 58, separated. On 20 November 2015, the court approved a consent order in financial remedy proceedings, which made provision for maintenance payable by the husband to the wife. Those payments were to end on the first of the following events
(a) the death of either the husband or the wife;
(b) the wife’s remarriage; or
(c) further order.
On 24 November 2015, decree absolute was granted. In October 2016, the husband applied to vary the maintenance to the wife on the basis that he could no longer afford to make monthly payments of £2,100. Around the same time, the wife applied for enforcement of the maintenance order. Substantial arrears of periodical payments had built up because the husband had not paid the wife anything since July 2016.
The court accepted that the husband’s income had decreased from that envisaged at the time of the consent order and reduced the maintenance payable to the wife. The wife’s barrister drafted the variation order, which the court approved (the 2017 variation order). However, that order, as drafted, erroneously provided that periodical payments would end upon the husband’s remarriage, rather than that of the wife. The husband then remarried and he told the wife that he was no longer going to pay her maintenance as ‘the court order allows for the payments to stop upon marriage’.
The wife applied to correct the 2017 variation order pursuant to the slip rule, on the basis that there had been an error in the drafting of the order, namely that the 2017 variation order provided incorrectly for maintenance to end on the husband’s remarriage, rather than her own. The slip rule is a type of procedural rule that allows the court to correct typing errors or to amend an order to give effect to the intention of the court- so to correct a mistake.
The court amended the order using the slip rule just on the papers sent in to the court. The husband sought a review of that order.
At a hearing on 14 October 2020, the judge explained that the 2017 variation order had been erroneously drafted and she made clear to the husband that, if his circumstances had changed and he could no longer pay maintenance at the level ordered, he could make an application to vary the maintenance order order.
The error in the 2017 variation order, unrectified, deprived the wife of her entitlement to maintenance once the husband remarried. That represented a significant injustice to her and, moreover, did not reflect the court’s intention at the time of the 2017 hearing and order.
There was an additional and important point that court orders should be accurate. The need for accuracy in a court order was available to anyone who asked for it. The requirement for accuracy in an order was equally compelling because a party’s rights or entitlement to a remedy might be lost, or a party might be disadvantaged if the order was inaccurate. The erroneous 2017 variation order meant that the wife apparently lost her entitlement to maintenance when the husband remarried, and the wife was financially disadvantaged in reliance on an inaccurate order. Correction of accidental slips or omissions at any time was consistent with the interests of justice and the fair resolution of proceedings.
If the court did not correct the order, it would be allowing the husband to benefit from an error in the order in a way that the court never intended. That would be unfair to the wife.
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