Invalid divorce – interim guidance

In April 2018, Sir James Munby, President of the Family Division of the courts in England and Wales, issued interim guidance relating to defective divorce petitions and decrees. As any London divorce lawyers will advise, the last thing you want after the stress of a marriage breakdown is to discover that you have an invalid divorce.

Ignoring time periods can result in an invalid divorce

divorce law solicitors have taken on board the interim guidance, which identifies areas in which ‘time’ requirements are not respected. These include:

- The need to have been married for a year before presenting a petition for divorce

- The requirement to have been deserted for ‘a continuous period’ of 2 years, if citing desertion as the ground for divorce

- The necessity to have been separated for a continuous period of 2 years up to the point of presenting the petition for divorce, if divorcing for this reason, with consent of your partner

- The necessity to have been separated for 5 years up to the point of presenting the petition for divorce, without consent.

Interim guidance has been issued because it appears that a number of divorces have been granted when either the couple have not been married for at least a year, or the grounds for divorce set out above have been cited but have not been properly fulfilled. 

The interim guidance refers to a case from the 1990s, Butler v Butler, The Queen’s Proctor Intervening [1990] 1 FLR 114, [1990] FCR 336 and, earlier still, Woolfenden v Woolfenden [1948] P 27. It explains that, following these cases

- A divorce petition presented too early (before the year of marriage has elapsed) is null and void, and the court has no jurisdiction to entertain it. As a result, any decree nisi or decree absolute granted in response to the petition is also null and void. 

- It is not possible to correct this by amending the divorce petition retrospectively

- The court can’t grant discretionary relief. 

- As result, any subsequent marriage is invalid.

The guidance goes on to explain that although there is no decided case law directly on the question of petitions for divorce where the time periods specified in the grounds for divorce (see above) have not been satisfied, similar consequences would follow. Where it is the ground for divorce which is the problem, Sir James mentions that it may be possible to amend the petition, if one of the other grounds for grounds are available to the petitioner.

What are the consequences of an invalid divorce?

Several legal consequences follow from an invalid divorce. Ultimately, and as mentioned above, it means you are still married to, or in a civil partnership with, your original partner. If you have remarried, you have essentially committed bigamy, although there is a defence to this if you can show that you genuinely believed you were divorced. If your current marriage is invalid because you did not actually divorce a previous partner, your relationship with your new partner has none of the protections of marriage. This is particularly concerning given the current lack of legal recognition for couples who live together without formalising their relationship.

Steps your divorce and family lawyers can take to protect you

If you are concerned that your divorce may be invalid, or you receive a letter explaining that this is the case, it’s worth making sure you use the best divorce solicitors you can find to advise you. If you haven’t already received the decree nisi or decree absolute, and the divorce is invalid because you weren’t married for a year before the divorce petition was presented, you will be able to apply again. 

If the divorce is invalid because you did not fulfil the time period required for the ground of divorce you were relying on, you may be able to amend the petition. The judge who considers the invalid petition will have to consider this. Our team of London divorce lawyers can advise on alternative grounds for divorce.

If you have been issued with a decree nisi or absolute, you will be invited to make representations before any action is taken. If you do have to present a new divorce petition, you should not have to pay the fee again. There are measures in place to ensure that your situation is dealt with as a priority. If you find yourself in a situation where you have remarried but your marriage is invalid because of the defective divorce, you will need to take advice to protect yourself and your current partner as ‘cohabitees’ until you are in a position to have a legal marriage. You may also need advice about the potential for bigamy charges.  Again, our team of London Divorce Solicitors can help, although in these circumstances, we would hope that people finding themselves in this situation would be treated with sympathy and compassion.

Will the new online divorce application improve things?

As we reported in a recent blog, the Ministry of Justice has launched a new online divorce service. It is now possible to lodge your application for divorce, pay the £550 and upload documents in support of your application via the Government Gateway portal. Although not yet a complete, ‘end to end’ service, trials of the new online divorce suggest that it will reduce the likelihood of this sort of confusion through system checks which will not allow the application to proceed if the dates provided suggest that the time limits/time periods have not been met.

OTS Solicitors have some of the best divorce lawyers in London on hand to advise and represent you through your divorce. We are respected divorce and family law solicitors, often acting in high net worth divorce settlements. We will be pleased to advise you on any aspect of divorce or family law. Book your appointment today by calling 0207 936 9960.

 

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