Defective Divorce Petitions – Divorces Granted Wrongly

In four recent divorce law cases (Baron & Others (4 Defective Divorces) [2019] EWFC 26), Sir James Munby was concerned with the divorce petitions, all of which had been brought in breach of s.3(1) of the Matrimonial Causes Act 1973 (Act). In other words, the petitioner in all four cases had made the petition less than a 12 months after the date of their marriage.

The outcome of the cases:

  • In two cases, neither the petitioners’ solicitors, Court staff nor the Judges had noticed that the petition had been presented within the first year of marriage. Both cases were dismissed.
  • In one case, the petition had been post-dated but had been received by the Court within the first year of marriage. Whilst this had been correctly treated as breaching the Act and dismissed, what then happened was the petition was simply amended and re-dated. The amended petition was dismissed by Sir James.
  • In the final case, the District Judge spotted that the petition had been issued within the first year of marriage and had dismissed it. A fresh petition was sent to the Court but the file was not given a new number. This administrative error was not enough to set aside the subsequent decrees of divorce, which remained valid,

Defective divorce petitions

Where a petition is presented in the first year of marriage, the petition is void and the Court has no jurisdiction to consider it. The defect cannot be cured by amendment, and the Court has no power to grant discretionary relief.

Sir James Munby felt that he could not complete his judgment without drawing attention to the ‘slapdash approach’ which featured in three of these four cases (Campbell-Anderson v Anderson; Baron v. Baron; and Bird v. Bird). On three occasions, it had been impossible to read the name of the Judge of Assistant Justices’ Clerk who gave the special procedure certificate due to the written name being illegible. Sir James remarked:

“This is not good enough. Litigants and others have the right to know who it is who makes an order, gives some direction or gives a statutory certificate… on two occasions the Assistant Justices’ Clerk was too hard pressed to make the appropriate deletions on the certificate he (or she) was signing. Again, this is simply not good enough. This is an important document which should be completed carefully and properly.”

Finally, Sir James observed that whilst introducing Regional Divorce Centres was plainly the right step, it has been marred by the “failure of HMCTS to provide adequate numbers of both administrative and judicial personnel”:

“It is, unhappily, notorious that some Regional Divorce Units have become bywords for delay and inefficiency, essentially because HMCTS has been unable or unwilling to furnish them with adequate numbers of staff and judges. What is revealed by two of the three cases that were handled by Regional Divorce Units are other failings which I cannot help thinking may have been due, at least in part, to the same underlying problem: people under pressure if there are not enough people engaged to do the work are more prone to make error. The sooner the entire process of divorce is made digital from beginning to end the better.”

How Nelsons can help

Layla Babadi Defective Divorce Petitionsis an Associate in our Family Law team specialising in divorce.

If you need advice in relation to any aspects of divorce proceedings, please contact Layla or another member of our team on 0800 024 1976 or via our online form.

The team will be happy to discuss your circumstances in more detail and provide you with more information about the services that we can provide.

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