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Procedure – divorce

Divorce practitioners may be particularly interested in the background to a recent case setting out the administrative processes and procedures by which errors in divorce proceedings are picked up electronically according to a pre-defined list of criteria.

Most are clerical errors but others are referred to the court for investigation.

A list was sent to Munby J identifying 11 cases in 2016 containing errors which impacted the validity of divorce proceedings. This particular case was one of them. The problem was that the two-year separation period had not yet elapsed when the petition was issued. Decree nisi was pronounced four months later and then made absolute. Both parties have remarried.

The central issue was whether the decrees were nullities and void – or merely voidable. Munby J analysed the legal framework and the authorities, drawing three conclusions from them:

  • There is a general lack of appetite to find that the consequence of ‘irregularity’ is that a decree is void rather than voidable.
  • It is generally recognised that only if the decree is held voidable, and not void, will the court be able to do justice to all those whose interests are affected and having regard to the particular circumstances of the case.
  • Recognition of the public interest, where matters of personal status are concerned, in not disturbing the apparent status quo flowing from the decree and the certainty which normally attaches to it.

Munby J ruled that the decrees here were voidable not void, that they would not be set aside, and the decree absolute remains valid and in force. But on what basis? He set out 11 reasons, perhaps most notably that:

  • ‘parliament surely cannot’ have intended the injustice which will inevitably flow to the parties and also their new spouses if the decrees were void;
  • the petition correctly pleaded the only relevant ground ie ‘the marriage has broken down irretrievably’; and
  • there was another fact in existence at the date of the petition which if properly pleaded would have justified the court granting a decree nisi and making the decree absolute.

The human element was important – the application affected four human beings and, as Munby J said, there was ‘only one way in which discretion can possibly be exercised here’:

‘M and P are victims of the justice system; neither of them wishes the decrees to be disturbed; both have remarried on the faith of the decrees; both they and their new spouses would suffer grave hardship, emotional and social, were the decrees to be disturbed; and both they and their new spouses would face a possibility which cannot be ignored of disadvantageous treatment by state actors both here and in Brazil were the decrees to be disturbed: in this country because of the possible actions of the Home Office and in Brazil in the form of criminal proceedings for bigamy.’

He ruled that the decree nisi should be varied in accordance with FPR 4.1(6), with the effect that the marriage has broken down irretrievably on the fact of unreasonable behaviour instead of two years’ separation. M v P (Queen’s Proctor intervening) [2019] EWFC 14. Source: www.bailii.org.

 

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