Defective divorce petitions – Am I actually divorced?

It’s been announced that a number of divorce petitions may be defective meaning people may not be officially divorced. Janine Hutson from our family department, looks at what has happened and the impact this could have.

President of the family division, Sir James Munby has confirmed that several divorces have been granted by the courts where the minimum legal requirements have not been met.

This will mean that some people, who thought they were divorced, are legally still married.

In some cases, couples submitted divorce petitions before they had been married for 12 months. The petition can only legally be submitted to the court a year and one day after marriage.

In other cases, court officials approved divorces when the parties had not spent two years apart to qualify for a ‘two years separation and consent’ divorce.

In some cases, Munby has referred matters to the Queen’s Proctor- the solicitor that represents the crown in probate and divorce courts. He has also issued interim guidance for ‘defective petitions/decrees’.

What is the interim guidance?

In the guidance, Munby refers to old case law which states petitions breaching section three of the matrimonial causes act, a bar on divorces within one year of marriage, are null and void. Meaning any decree nisi or decree absolute granted after a breached petition has been submitted is null and void. Any subsequent marriage is also invalid.

The issue cannot be fixed by changing the petition and the court hasn’t got the power to grant discretionary relief.

However, where there’s a breach of time limit, but the decree hasn’t been granted, judges can opt to dismiss the petition and send a letter to the parties involved indicating that a new petition can be ‘issued in due course’. Where a decree has not been granted yet, the judge may also allow the petition to be amended. Munby has confirmed that the court fee for a new petition will be waived.

The future of divorce proceedings

Munby warns that both courts and judges should be aware of how finding out about a problem with their divorce will impact on people, especially if one party has remarried or is due to shortly remarry.

The guidance ends by stating that the courts have assured Munby new software will prevent errors like this when the online divorce project is fully operational.

If you have any doubts or concerns in relation to your divorce proceedings, it is important that you seek legal advice from a specialist who can offer assistance in relation to time limits and grounds for divorce.

Harrison Drury has an experienced team of family and divorce lawyers in Lancashire and Cumbria. If you would like to speak confidentially to the team about any family law matter, contact them on 01772 258 321.