The President of the Family Division, Sir Andrew McFarlane and Her Honour Judge Lynn Roberts have handed down judgment in a case involving 79 divorces made incorrectly due to a computer system error. Lawyers for the Lord Chancellor had sought to persuade the court to treat the divorce orders as being "voidable" meaning they would still stand, rather than "void", where it would be as though the divorce was never made. In their judgment, Sir Andrew MacFarlane and Her Honour Judge Roberts concluded that each of the 79 final divorce orders now before the court is voidable, rather than void.
Background
Section 3 of the Matrimonial Causes Act 1973 provides that an application for a divorce order cannot be made before the expiry of one year from the date of the marriage – this means that a divorce application cannot be submitted until a year and a day after the marriage. This has previously been considered an absolute rule, and previous decisions of the court have considered that where a petition has been issued in breach of the rule, the court has no jurisdiction to entertain it – the divorce decree or order is considered null and void, meaning that the parties would in fact still be married, despite having believed themselves to be divorced.
However, in a drive towards reform and greater digitisation of the court process, the vast majority of divorce applications are now made online. One of the advantages of moving the divorce process online was said to be that applicants would not be able to submit their application unless they met the correct criteria, reducing the scope for human error and applications being returned, or orders being made incorrectly. Unfortunately, the online system accepted applications made on the first anniversary of the marriage – i.e. one day too early. This went unnoticed, and 79 divorces were granted when they should not have been.
Lawyers for the Lord Chancellor had sought to persuade the court to treat the divorce orders made in breach of s.3 as being "voidable" meaning they would still stand, rather than "void", where it would be as though the divorce was never made.
Sir Andrew McFarlane P considered that there is a distinction between the requirement in s.3 that an application not be issued before a year and a day and the consequences of a breach of that requirement. Where the Matrimonial Causes Act 1973 did not specify the consequences of a breach of s.3, it would be for the courts to discern the intention of Parliament, focusing on the underlying policy of the provision and the effect on the public and private interests that are in play. There was a distinction between cases in which the court lacks jurisdiction to grant a divorce order in the circumstances in which it has purported to do so (in which case the order would be void) and cases in which, although the court has jurisdiction, it has failed to observe a statutory provision against the exercise of it, or there has been a procedural irregularity. In the latter cases, the order made would be voidable. The previous cases (finding that the orders would have to be considered void) had taken an overly narrow approach, and the President did not accept that a breach rendered the court without jurisdiction.
The central question to be answered was the intention to impute to Parliament as to the consequences of non-compliance. The focus should be on the underlying policy of s.3 and on the public and private interests involved if final divorce orders were treated as legally non-existent. To consider that breaching s.3 by even one day must automatically lead to the setting aside of the divorce orders would be disproportionate, would be likely to do damage to the public interest in achieving clarity and legal certainty as to the marital status of a citizen and would lead to outcomes that would be problematic for the citizens concerned, which was unlikely to be the intention of Parliament. He considered the divorce orders to be voidable, rather than void.
Commentary
The potential implications in this case were huge. To remarry, one needs a valid divorce – the court noted that 11 of the affected spouses had remarried, believing they were validly divorced, only to now discover that they were potentially not. Financial orders had been made on divorce in 17 cases, with these being rendered invalid if the divorce orders were considered void. There would also be implications in terms of matters such as how an estate passes on death. If the court followed the previous approach and declared the divorces void, the consequences were potentially devastating.
This was a purposive and proportionate decision by the President. While the prohibition on making a divorce application for a period of a year after marriage is an important one, the present cases involved potentially seismic consequences for the individuals involved based on a technicality. The court noted that, while the applications were submitted a day early, they would not have been issued (or processed) for several days or weeks after that.
The finding that the divorce orders can stand is a practically sensible approach and one that it is hoped will ensure the individuals involved will avoid the serious consequences that a finding they were in fact still married could have caused.