Sir James Munby, President of the Family Division of the High Court, has revealed in a technical briefing that Court admin errors have resulted in people being granted divorces by mistake. This article looks at the impact of those errors on people who believed their marital affairs were in order.
Today’s news headlines reveal that divorce centres in England and Wales (the administrative centres set up in 2015 for handling divorces) have erroneously granted a number of divorces. Those divorces are null and void which means that anyone granted a divorce in error during this time who has gone on to remarry will have technically committed the offence of bigamy, a criminal offence which can be punishable by a fine and/or up to 7 years’ imprisonment. It also means that their subsequent marriage is null and void.
The errors have been made as a result of people submitting their divorce petitions to Court prematurely (before the date they qualify for a divorce). It is thought that this is partly due to confusion regarding the ‘one year rule’. You must be married for one year before you can seek a divorce. Whilst some petitions are submitted on the first anniversary of a marriage, the one year rule requires the marriage to have lasted one year and a day before the petition is lodged at Court.
To obtain a divorce the Petitioner must prove the marriage has irretrievably broken down. This can be shown in one of five ways including adultery and unreasonable behaviour. Other grounds include desertion and periods of separation (two years with consent, five years without). It is believed that Court officials have granted some divorces too early, without these separation periods being proved. Consequently, the divorce is null and void.
So, what is the solution? Firstly, anyone who has gone on to remarry is unlikely to be prosecuted for bigamy (although their subsequent marriage will not be legally recognised). The erroneous ‘divorce’ will be struck out and those affected will need to re-submit their divorce petition. It may be beneficial for them to petition on an alternative, fault-based ground such as adultery or unreasonable behaviour (which do not require evidencing a period of separation).
However, this in itself is an area of debate with Baroness Hale, President of the Supreme Court, this week arguing that blame should be removed from the divorce process on the basis that is “unjust” and “discriminatory”. She believes that the current system of ‘blame’ adds to the “anger, pain, grief and guilt” of divorcing couples and the requirement of two or five years’ separation discriminates against those couples who cannot afford to live separately. Instead of the current system of proving irretrievable breakdown of marriage in one of the five ways, Baroness Hale suggests one party should be able to complete one form, telling one story.
It remains to be seen whether current divorce legislation will see such marked changes in the foreseeable future but the recent administrative errors by Court staff highlight the need for divorcing couples to ensure their divorce petitions are accurate and meet the legal requirements for divorce. With increasing numbers of people attempting to conduct their own divorces, today’s news supports the importance of seeking legal advice; to proceed without professional advice could prove more costly in the future.
If you would like any further advice in relation to divorce or other family law matters, please contact a member of our Family Team who would be happy to assist.
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