• Gareth-Lee Smith

Divorce petitions must be issued more than one year after marriage or else they will be void

Baron v Baron [2019] EWFC 26


On 17th April 2019 Sir James Munby P, sitting as a judge of the High Court, handed down judgment in four applications by the Queen’s Proctor for the setting aside of decrees nisi and absolute of divorce on the grounds that all the decrees are void by reason of non-compliance with Section 3(1) of the Matrimonial Causes Act 1973. That section reads:

“No petition for divorce shall be presented to the court before the expiration of the period of one year from the date of the marriage.”


In two of the cases the error went unnoticed. In one of the cases [Baron v Baron] the error was brought to the attention of a district judge and the wrong procedure was followed in attempting to remedy the defect. In the final case [Bird v Bird] the error was brought to the attention of the same district judge and was properly rectified.


The general approach


The President of the Family Division cited his own guidance in President’s Guidance (Interim): Defective Divorce Petitions / Decrees issued on 23rd April 2018, which in turn cited the case of Butler v Butler, The Queen’s Proctor Intervening [1990] 1 FLR 114 as follows:

“4 It appears from the decision of Sir Stephen Brown P in Butler v Butler, The Queen's Proctor Intervening [1990] 1 FLR 114, [1990] FCR 336 (and see also the decision of Barnard J in Woolfenden v Woolfenden [1948] P 27 ) that:

(1) Where a petition has been issued in breach of section 3, it is null and void and the court has no jurisdiction to entertain it; with the consequence that any decree nisi or decree absolute purportedly granted is likewise null and void.

(2) The defect cannot be cured by amendment of the petition.

(3) The court has no power to grant discretionary relief.

(4) In consequence, if a party has subsequently remarried that marriage is invalid (see Woolfenden)


The law then is clear: such a decree when granted is void and not merely voidable.


The individual cases


In two of the cases the President went on to lament that in each of them it appeared that legal representatives, court staff, and a number of members of the judiciary had failed to spot the nullity. In both cases the court granted the declarations sought by the Queen’s Proctor that the petitions were void.


Baron v Baron


In the case of Baron v Baron [para 22 onwards], the parties were married on 26th July 2014. The husband petitioned for divorce under a petition purportedly dated 27th July 2015 [therefore satisfying Section 3(1)], but under a covering letter dated 17th June 2015 and received 22nd June 2015. That is to say: the letter was post-dated.

The court, in an attempt to accommodate the petitioner, agreed to hold the petition and process it after 28th July 2015. It was therefore marked as issued on 6th August 2015. A decree nisi was granted on 9th December 2015 by a district judge, and made absolute on 23rd February 2016.

This issue was later identified and put before District Judge Simmonds sitting in the Family Court at the South West Divorce Unit. He made the following order:

EX PARTE


Upon this file being referred to District Judge Simmonds and the Court noting that the petition was issued less than one year after marriage and therefore contrary to section 3 MCA 1973 and the proceedings are therefore void


AND UPON the Court inviting submissions from the parties before the Court sets aside Decrees already pronounced


IT IS ORDERED THAT:


1. The parties are invited to urgently contact Hannah Brown on telephone number … or email … to arrange for an urgent telephone hearing with District Judge Simmonds to consider the orders to be made and the ramifications of such order.

2. If the Court has not heard from the parties by 4pm on Wednesday 12th October 2016 the court will set aside all Decrees.”


On 4th October 2016 the District Judge heard both parties by telephone and made the following order:

“UPON HEARING both parties by telephone


AND UPON the Court recording that the Petition issued on 22nd June 2015 was issued before the expiry of one year after their marriage and therefore void


AND UPON a new petition being issued today


AND UPON the Respondent confirming her agreement to the Petition as before and the Court dispensing with service of the new petition on her


BY CONSENT


IT IS ORDERED THAT:


1. The Decree Nisi dated 9.12.15 and the Decree Absolute dated 23.2.16 set aside forthwith.


2. The Petition be re-issued forthwith and service on the Respondent dispensed with.


3. The Court shall treat the oral application today by the Petitioner as his application for Decree Nisi and shall proceed forthwith with Decree Nisi.


4. The court having considered the petition the Court certified the petitioner’s entitlement for a Decree.


5. The decree nisi is pronounced forthwith.


6. The time for application for Decree Absolute is abridged to 7 days. The Respondent consenting to such application.


7. The Court shall deem the oral application today by the Petitioner for Decree Absolute and the Court shall pronounce Decree Absolute on the expiry of that period”


On 4th October 2016 a decree nisi was granted, and it was made absolute on 11th October 2016.


In truth, no new petition was issued at all. Instead the original petition was marked “amended” and “Rec’d 4/10/16”. The amended petition bore the same number as the original petition.


The President found [at para 28] that in the light of Butler v Butler, The Queen’s Proctor Intervening [1990] 1 FLR 114 , the case admitted of no possible argument. He found that the district judge had been right to treat the petition as presented to the court within the meaning of Section 3(1) on the day it was received by the court, and was therefore right to set aside the decree nisi and decree absolute on the grounds of nullity. However, he was wrong to proceed as he did thereafter.


The President went on to state if a new petition had been presented and issued in the usual way then there would been no problem. He referred to page 118 of the judgment in Butler v Butler, in which Sir Stephen Brown P refused to treat an amended position as a “fresh, independent petition rather than an amendment of an existing petition”, because whilst there was “no suggestion in this particular case of any want of probity on the part of anybody” there was instead “a situation which cannot be put right merely by an order of this court. It cannot render valid a decree which was in fact void by statute and not merely voidable”.

The decrees nisi and absolute were therefore declared void.


Bird v Bird


The Baron case can be contrasted with that of Bird v Bird [beginning at para 29]. The case began much like that in Baron v Baron insofar as the parties were married on 16th January 2015 and the petitioner issued her petition on 13th January 2016. It was again, coincidentally, put before District Judge Simmonds, and the district judge again ordered that a telephone hearing would take place to consider what orders should be made.


However, this case took a different turn because a court officer contacted the petitioner’s solicitors and asked for a fresh application. That petition followed two days later and was received by the court on the third day.


District Judge Simmonds therefore made the following order:


UPON HEARING both parties by telephone


AND UPON the Court recording that the Petition issued on 13th January 2016 was issued before the expiry of one year after their marriage and therefore void


AND UPON a new petition being issued today


AND UPON the Respondent confirming his agreement to the Petition as before and the Court dispensing with service of the new petition on him


IT IS ORDERED THAT:


1. The Decree Nisi dated 22.7.16 and the Decree Absolute dated 13.9.16 set aside forthwith.


2. The Petition be re-issued forthwith and service on the Respondent dispensed with.


3. The Court shall treat the oral application today by the Petitioner as her application for Decree Nisi and shall proceed forthwith with Decree Nisi.


4. The court having considered the petition the Court certified the petitioner’s entitlement for a Decree.


5. The decree nisi is pronounced forthwith.


6. The time for application for Decree Absolute is abridged to 7 days. The Respondent consenting to such application


7. The Court shall deem the oral application today by the Petitioner for Decree Absolute and the Court shall pronounce Decree Absolute on the expiry of that period.”


However, the court office failed to properly process the fresh petition, and instead attached the number of the original petition.


The President held that this was a “fresh, independent petition” [para 37], and that it was ‘plainly permissible and, other things being equal, was effective” for the judge to grant the order that he did.


On the issue of whether the administrative error of the court affected the efficacy of the order, Sir James Munby P held [at para 38] that it did not; citing and applying his own judgment in M v P at 103: “one has to ask what conceivable principle of justice or public policy could possibly be served by treating as nullities decrees where the parties were the innocent victims of failure by the court itself, and where their subsequent marriages, entered into in complete good faith and in reliance upon the court's own orders, would thereby be treated as bigamous, when the entire problem derives from the fact that a cross was placed in the wrong box.”


Learning points


It is clear that amendment of a petition for divorce will not cure a defect contrary to Section 3(1) of MCA 1973.


It is further clear that merely amending the petition is insufficient: a fresh, independent petition must be presented.


Whilst it might seem like a good idea to post-date a divorce petition to get ahead of the game, the court will find that the petition was presented on the day received and not the date asserted by the petitioner. Any divorce granted on such a basis will therefore be a nullity.