Divorce, Defects and Disarray 

Published on 24 April, 2018 | Andrew Newbury

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The end of a marriage can be an emotional experience, much as you’d expect.

Even so, the process by which it is achieved is generally fairly straightforward and administrative.

It will come as something of a shock, therefore, to read new guidance issued by the President of the Family Court, Sir James Munby about the administration of some divorces not being up to scratch (https://www.judiciary.gov.uk/wp-content/uploads/2018/04/pfd-guidance-divorce-2018.pdf).

Sir James has noted that “a number of cases” have been brought to his attention in which divorce decrees were granted without the qualifying criteria set out in the relevant legislation (Matrimonial Causes Act 1973) being met.

In particular, he highlights instances in which petitions were allowed before the first anniversary of couples’ marriages had elapsed. It seems that there were other divorces in which couples were permitted to end their marriages on the grounds that they had been estranged for either two or five years.

As I’ve been remarking to Steve Doughty, the Daily Mail’s Social Affairs Correspondent (http://www.dailymail.co.uk/news/article-5649505/Couples-thought-divorced-married-series-blunder-officials.html), the issue might have arisen because of a combination of circumstances.

Firstly, Family courts are under ever greater pressure. In the last two years, one-fifth of all courts and tribunals have closed (http://www.bbc.co.uk/news/uk-35552199) with those that remain having to deal with a larger workload.

There is the additional complication of the withdrawal of Legal Aid for many Family law cases meaning that more individuals choose to handle court paperwork and even court appearances themselves rather than retain specialist lawyers.

Those ‘Litigants in Person’, as they’re known, can perhaps understandably make mistakes which delay proceedings. According to the Courts and Tribunal Service, some 40 per cent of divorce petitions are in fact rejected because of such errors (https://insidehmcts.blog.gov.uk/2017/04/11/working-with-stakeholders-to-develop-an-online-divorce-service/).

Sir James Munby’s account is telling in that it suggests other areas of the system have failed on a number of occasions, including those points at which the relevant documents should be checked to ensure that they are in order.

It’s worth remembering that such an oversight is not without consequences.

There is a risk that some individuals who have remarried will now find that their later marriages are in fact invalid because one of the spouses is still legally married to someone else due to a divorce being ineffective.

Financial orders made following what are described in Sir James’ guidance note as “defective” divorces would also be invalid, leading to claims made by spouses having to be re-opened.

Furthermore, there could be other, such as the knock-on effect on things such as family inheritances.

In acknowledging the problem, Sir James is also making an admirable attempt to resolve possible difficulties.

He knows that beginning divorces again from scratch might certainly be costly and time-consuming, so he has proposed a fast track for those cases which have perhaps breached proper procedures.

Even that initiative, though, could be frustrated by the very factors which might be at the heart of the issue which he has uncovered.

The sheer volume of cases being dealt with by family courts mean that a solution may not necessarily be as quick as he or the couples involved would like.

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