Is your divorce defective?

Relationship breakdown

posted: 25th April 2018

The President of the Family Division, Sir James Munby has provided guidance on divorces in light of recent developments that some people will have been incorrectly granted a divorce.

Sir James Munby sets out a number of areas that have not been complied with including the following:

  1. Under the Matrimonial Causes Act 1973 (MCA), section 3 provides a “bar on petitions for divorce within one year of the marriage”. Therefore no person can apply to the Court for a divorce until they have been married for at least 1 year.
  2. Under section 1(2)(c) of the MCA if you are applying for a divorce based on your spouse deserting you, this has to be for a continuous period of 2 years immediately before your petition for divorce.
  3. Under section 1(2)(d) of the MCA you can apply for a divorce on the ground of 2 years separation by consent. In order to use this ground you have to have been separated for a continuous 2 year period prior to issuing your petition with the Court.
  4. Under section 1(2)(e) of the MCA you can apply for a divorce on the ground of 5 years separation. You must be separated from your spouse for a continuous period of 5 years immediately prior to petitioning for divorce.

Sir James Munby confirms that he has recently been presented with cases in which Decree Nisi (which is pronounced by the Court upon application of the same by a party and consideration of the petition. This is the mid-way point of the divorce) and Decree Absolute (the formal Order confirming you are divorced) have been granted despite the above time periods not elapsing. The President has in fact deemed it necessary to refer some of the cases to the Queen’s Proctor. Cases are generally only referred to the Queen’s Proctor if it is alleged that there is collusion or suppression in respect of the facts of the case.

In the case of Butler v Butler, The Queen’s Proctor Intervening [1990] Sir Stephen Brown P and Barnard J in the case of Woolfenden v Wolfenden [1948] determined that a petition was null and void if it was issued in breach of section 3 above at point 1. It follows that any Decree Nisi or Decree Absolute that is granted would also be null and void. The consequences of the petition being null and void are:

  1. ‘the defect cannot be cured by amendment of the petition’
  2. ‘the court has no power to grant discretionary relief’
  • In consequence, if a party has subsequently remarried that marriage is invalid’.

If any of the grounds set out at 2-4 above are breached, then Sir James Munby confirms that they will also be null and void. In this instance however it is confirmed that it may be possible to amend the petition depending on the facts of the case to either adultery or unreasonable behaviour.

Given the above findings, some people who have remarried could be committing bigamy and those that are considering getting remarried are at risk of unintentionally committing bigamy.

It is confirmed that in the event it is discovered that a petition or Decree is granted in breach of the time limits set out in the MCA it should be immediately referred to a District Judge or Circuit Judge to review the file. If the Judge is unsure of what to do or believe the Queen’s Proctor should investigate the matter, they should first contact the President of the Family Division.

If there are no Decree’s issued and the Judge deems the case to be straightforward in that it is clearly breaching section 3, they can dismiss the petition and outline the reasons for the same to the parties involved. However if a Decree has been pronounced and there is a breach of any of the time limits set out above, the Judge should allow the parties to be heard on whether the Decree is null and void if section 3 has been breached. If there is non-compliance with the time limits set out in ground 2-4 and a Decree has been pronounced, the Judge will allow the parties the opportunity to be heard on whether it is appropriate for the petition to be amended.

Sir James Munby explains that any new petitions issued after a party has been advised their petition is null and void should be sent to the same court as the first petition, have its own case number and the fee should be waived. He further goes on to explain that it may be appropriate for the Decree Nisi to be made Absolute within a very short period of days rather than weeks.

Guidance is provided to HMCTS and the judges to aware of the impact the news their divorce is void can have on litigants and any communications should be appropriate and apologetic. Sir James Munby concludes by stating he is ‘assured by HMCTS that the software will prevent errors of this kind occurring when the online divorce project is fully operational’.

The above confirms the reasons why you should always consult a solicitor before embarking on the challenge of divorce and financial matters ancillary thereto.

PMC Family Law has an expert team of family solicitors headed up by Pauline McNamara. We specialise in divorce, are thorough and ensure the law is appropriately applied. If you have any queries, please do not hesitate to contact us on 0151 375 9968 or email . We can arrange a free initial consultation with you today.

By: Lindsey Potter - Paralegal