Divorces declared void after being issued within one year of marriage

Divorce|May 2nd 2019

Sir James Munby’s judgment in Baron & Others (4 Defective Divorces) hit the headlines recently, but not actually because of the subject-matter of the case (the headlines, as I mentioned here, were to do with Sir James’s comments regarding the inefficiency of some Regional Divorce Units).

What the former President of the Family Division was actually considering in the case was applications by the Queen’s Proctor for the setting aside of divorce decrees in four different cases, on the ground that the petitions had been presented before the expiration of the period of one year from the date of the marriage. As I explained here recently, the Queen’s Proctor is an officer of the judiciary, who may intervene in divorce proceedings “to argue before the court any question in relation to the matter which the court considers it necessary or expedient to have fully argued”. (The case referred to in that post was one of five, the other four being considered in the Baron case).

To explain for those who are not aware, the present law forbids the filing of a divorce petition before the expiration of the period of one year from the date of the marriage. Accordingly, any petition filed before then is null and void. And this, it seems, will not change when (and if) the proposed no-fault divorce is introduced, as the government intends to retain this ‘one-year bar’, which it believes “serves a useful purpose to underline the importance of commitments made at the time of marriage”. Accordingly, if the government gets its way this case will still be relevant when the law on divorce changes.

I’m not going to go into the legal niceties of whether failure to comply with the one year rule is a matter that can be corrected by the court, or whether it means that the petition is a nullity (you can find the details in paragraphs 4 to 9 of the judgment). Suffice to say that Sir James found in favour of the latter.

So to the four cases.

In the first case the parties were married on the 23rd of August 2012. The wife issued her divorce petition on the 28th of May 2013. No one spotted the error and the divorce eventually went through (i.e. to decree absolute) in August 2018. As Sir James said, “the case admits of no possible argument”. Accordingly, he declared the divorce void.

In the second case the parties were married on the 28th of May 2015. The wife issued her divorce petition on the 20th of May 2016. No one spotted the error and the divorce went through in January 2017. Again, said Sir James, the case admitted of no possible argument. Accordingly, he also declared this divorce void.

In the third case the parties were married on the 26th of July 2014. The husband post-dated his petition 27th of July 2015, but sent it to the court on the 17th of June 2015, and the court issued it on the 22nd of June. Without going into the details, the divorce was made absolute on the 11th of October 2016. Once again, Sir James found that the case admitted of no possible argument, and declared the divorce void.

The fourth case was slightly different. The parties were married on the 16th of January 2015. The wife issued her divorce petition on the 13th of January 2016. The divorce went through in September 2016, but the problem was then identified, and the court set aside the decrees. A fresh petition was issued, and fresh divorce decrees made. Unfortunately, there was an administrative error by the court in that it failed to properly process the fresh petition. However, Sir James held that this did not nullify the ‘new’ divorce, which remained valid.

In all of the cases the parties had issued new petitions for divorce, in order to preserve their positions. In each of the first three cases Sir James went on to grant a decree nisi, and to abridge the time for the decree absolute, from six weeks to four days in the first two cases, and to three weeks in the third case. The new petition in the fourth case was struck out.

The moral from all of this, of course, is to make sure that you comply with the one year rule. It’s an easy trap to fall into, but one that can have serious and expensive consequences, not least the possibility of bigamy if a party remarries when they were not actually divorced.

You can read Sir James’s full judgment here.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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