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Family Division President warns of accidental bigamy

Family Division President Sir James Munby has warned that an unspecified number of recently issued divorce decrees may not be legally valid.

In guidance published this week, he warned that “very recently a number of cases have been brought to my attention where decrees nisi and absolute have been granted” in violation of the Matrimonial Causes Act 1973 (MCA).

Specifically, he explained:

“…decrees nisi and absolute have been granted notwithstanding that:

(i) the petition, in breach of section 3, had been issued within one year of the

marriage, or

(ii) although there had been no breach of section 3, the relevant period prior to the

presentation of the petition specified in section 1(2)(d) or 1(2)(e) had not elapsed.”

Section 3 of the MCA states that:

“No petition for divorce shall be presented to the court before the expiration of the period of one year from the date of the marriage.”

Sections 1(2)(d) or 1(2)(e), meanwhile, cite two of the five available “facts” which can be used to demonstrate the breakdown of a marriage, namely that the parties have lived apart for “a continuous period of at least two years immediately preceding the presentation of the petition [for divorce]” by agreement, or that they have “lived apart for a continuous period of at least five years immediately preceding the presentation of the petition”. In the latter case, no consent is needed for divorce.

Any divorce decrees issued in breach of these condition would be legally void and if the parties concerned had subsequently remarried they would technically be guilty of bigamy. Some financial settlements and inheritance matters might also have to be to be reconsidered.

Sir James said affected couples would have to reapply for divorce but he urged a sympathetic approach to such individuals.

“HMCTS (Her Majesty’s Courts and Tribunals Service) and judges will wish to be alert to the potentially devastating impact on litigants of being informed that there is a ‘problem’ with their decree, especially if (and this is unlikely to be known to the court when the first communication is made) a litigant who believes that they have been validly divorced has remarried or is due very shortly to remarry. Communications should accordingly be expressed in appropriately sympathetic and apologetic language”.

The President said online divorce procedures would prevent such bureaucratic mishaps occurring in the future.

Sarah Snow is Managing Partner of the Stowe Family Law office in Manchester. Speaking to The Daily Mail, she said:

“I would imagine this is a significant blunder. Too little information causes panic.”

Resolution Chair Margaret Heathcote added:

“The fact that the President has had to issue this guidance suggests there are basic mistakes being made that simply shouldn’t happen”.

Read the guidance here.

The blog team at Stowe is a group of writers based across our family law offices who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. As well as pieces from our family law solicitors, guest contributors also regularly contribute to share their knowledge.

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