As Murphy’s law gloomily states, anything that can go wrong will go wrong. Lawyers and judges are certainly not immune from making basic mistakes but, as a High Court ruling in a divorce case showed, they can usually be put right.
The case concerned a couple who were married for almost 29 years and had three children prior to their divorce. Their financial differences were settled by a court order which, amongst other things, required the husband to pay the wife maintenance on a monthly basis. It was agreed that that obligation would come to an end if either of them died or if the wife remarried.
After the husband suffered a falling off in his income, he successfully applied to cut the maintenance payments. That decision was given effect by a fresh court order which was drawn up by a barrister and approved by a judge. Both failed to notice that the order stated on its face that the husband’s maintenance obligations would cease on his remarriage, rather than that of the wife.
The husband organised his life and financial affairs in reliance on the order. After remarrying, he informed the wife, who was suffering from cancer at the time, that she would receive no more maintenance. He took the view that his remarriage created a clean break, severing all financial bonds between them.
More than two years after the order was made, however, the wife applied to a judge under a rule of procedure known as the Slip Rule. Her entitlement to maintenance payments was resurrected after the judge amended the order so that the original position was restored and the husband’s obligation to make those payments only came to an end on her remarriage.
Rejecting the husband’s challenge to that outcome, the Court noted that both wife and husband were deserving of sympathy in that neither of them had acted in bad faith and both had suffered disadvantage as a result of the drafting error. The wife apparently lost her entitlement to maintenance on the husband’s remarriage and he had relied on the inaccurate order to his detriment.
The Court noted, however, that the Slip Rule enables correction of accidental slips or omissions in a judgment or order at any time. The order as drafted manifestly failed to express the intention of the judge who made it and leaving it uncorrected would be to leave a permanent inaccuracy on the record. Such a course would be profoundly unjust to the wife. The Court noted that the husband remained at liberty to apply for a further downward variation of the maintenance order.
