Divorce: The Devil is in the Detail
Imagine thinking that you are divorced; then you both remarry only to find out that the Court made an error in your divorce proceedings, that the divorce has been deemed void, and that you and your former spouse are going to potentially face criminal sanctions for bigamy.
This nightmare scenario came to light in the recent case of M v P (Queen’s Proctor intervening)  All ER (D) 147 (Mar).
Here, a divorce was granted in 2014 following the Petitioner indicating to the Court that the marriage had irretrievably broken down based on the fact of two years of separation. The Decrees Nisi and Absolute were granted and that was thought to be that.
However, three years later a District Judge decided that the two year separation period had not in fact been achieved and instead allowed the Petition to be amended so that the Petitioner could instead rely on the Respondent’s unreasonable behaviour.
Problem solved? Not so.
The Queen’s Proctor then applied to set the Decrees aside on the basis that s1(2)(d) of the Matrimonial Causes Act 1973 had not been complied with. The Queen’s Proctor was technically correct.
Thankfully however, Sir James Munby sitting as a Judge of the High Court used the Court’s discretion to allow the decrees to stand on the basis of an amended Petition and Decree Nisi.
He said: “In these circumstances there can be no question of avoiding these decrees. To do so would be to add insult to the injury already inflicted on these innocent people by the State’s blunderings. Every principle of justice and public policy demands that, as I do, I exercise discretion in their favour.”
So, what does this case teach us?
Well, the drafting of a Divorce Petition isn’t as easy as it looks. There are often seemingly small but extremely important rules which must be kept to when choosing which fact to rely on in proving that your marriage has broken down.
For example, don’t petition your spouse on the basis of adultery when you can’t prove it and he/she hasn’t formally admitted it. Or don’t rely on unreasonable behaviour if you have lived together for longer than six months after the last incident relied upon.
The Divorce Application is now available online, with tick-box exercises taking a budding petitioner through the process. Whilst this is convenient, any family solicitor would tell anyone to be careful when they click.
Recent experiences have seen unwitting online applicants choosing the wrong fact, or having insufficient evidence to be able to prove such fact later down the line, leading to expensive and lengthy Court proceedings to rectify the situation.