Munby takes action on ‘defective’ divorces

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The impact of not actually being divorced when you think you are is huge and means that any subsequent marriage entered into by either party is invalid and effectively bigamous. These situations should not happen but recent guidance issued by Sir James Munby indicates that there is a growing number of people who may be affected by this issue.  If you are in any doubt as to the validity of your Decree Nisi or Decree Absolute and need advice around this issue please do not hesitate to contact us.

Some divorced people who have remarried may have inadvertently committed bigamy after being granted a defective divorce, the president of the family division has revealed.

Sir James Munby said it had been brought to his attention that some decrees nisi and absolute have been granted even though they breach time limits imposed by the Matrimonial Causes Act 1973.

Section 3 of the act bars divorce petitions being presented to the court within 12 months after the couple have wed. Grounds for divorce include: the respondent has ‘deserted’ the petitioner for a continuous period of at least two years after the petition has been presented to the court; or the parties have lived apart for a continuous period of at least two years and consent to a decree being granted.

Munby said he has referred some cases to the Queen’s Proctor – the proctor or solicitor representing the Crown in the probate and divorce courts. In the meantime, he has issued interim guidance for ‘defective divorce petitions/decrees’.

He refers to decisions in Butler v Butler, The Queen’s Proctor Intervening [1990], and Woolfenden v Woolfenden [1948], which state that petitions which breach section 3 are null and void and the court has no jurisdiction to entertain them. Consequently, any decree nisi or decree absolute that is granted is null and void. If a party has subsequently remarried, the marriage is invalid.

If a judge discovers that a decree has been granted despite breaching a time limit under the act, judges are advised to immediately get a salaried judge to look at the file. If the judge is uncertain or wants to invite the Queen’s Proctor to intervene, they are asked to contact Munby first. Where a time limit has been breached but a decree has not been granted, judges can dismiss the petition, ‘ensuring that a suitable explanatory letter is sent to the parties indicating that, if desired, a further petition can be issued in due course’. There may be some cases, where a decree has not been granted, in which the judge might be able to allow the petition to be amended.

The guidance states that HM Courts & Tribunals Service will waive issue fees for new petitions.

Read the full article on the Law Gazette’s website.

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