Defective Divorces

Warning: a number of divorces are ‘defective’

Did you know that you have to married for one year and one day before you can ask for a divorce?

Many people do not know this and it would seem that the family law courts have forgotten too!

The most senior, family law judge, Sir James Munby has had this brought to his attention: that many decree nisis have been made final and absolute even though they breach the time limits imposed by the Matrimonial Causes Act 1973.

Section 3 forbids divorce petitions being presented to the court within 12 months after a couple have wed.

So what happens now?

Many people have actually remarried and as a result may have inadvertently committed bigamy after being wrongfully granted a divorce.

This revelation has meant that some cases have been referred to the Queen’s Proctor – who represents the Crown in this type of situation and Sir James has issued some interim guidance which can be seen here.

And what does this mean?

• If the court discovers that a decree has not been granted and the time limit has been breached, it is likely the divorce will be dismissed (and a further divorce petition can be issued in due course);
• If a decree has been granted a judge will have to look at the file and the Queen’s Proctor may intervene to decide what is to happen.

Sir James said: ‘HMCTS 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.’

How has this happened?

It is unclear but it could be as a result of the court’s computer software not picking this 1 year rule up at the start of a divorce case and these errors have effectively slipped through the net. Added to this is the fact that more people are trying to complete a divorce themselves and who may obviously not realise this or understand the law.

This is, however, cold comfort and divorce petitions that breach the time limit rule mean that any consequent decree nisi or decree absolute granted is null and void; and if that is not bad enough, if a party has subsequently remarried, that marriage is invalid.

If you are in doubt about your own personal situation, please do not hesitate to contact our specialist family law solicitors by email: james.maguire@family-law.co.uk

Or telephone at the following locations:

Wilmslow       01625 544650

Knutsford      01565 648228

London          0207 9474219

Manchester    0161 8048441