Defective Divorce Petitions and Decrees: procedural guidance

An increase in defective divorce petitions and decrees has led to interim guidance being published by the President of the Family Division. He notes particularly that HMCTS and judges “will wish to be alert to the potentially devastating impact on litigants of being informed that there is a ‘problem’ with their decree, especially if … a litigant who believes that they have been validly divorced has remarried or is due very shortly to remarry”.

The guidance highlights the requirements under s3 Matrimonial Causes Act 1973:

"Bar on petitions for divorce within one year of marriage.
(1) 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.
(2) Nothing in this section shall prohibit the presentation of a petition based on matters which occurred before the expiration of that period."

In his interim guidance, Sir James Munby states: “Very recently a number of cases have been brought to my attention where decrees nisi and absolute have been granted notwithstanding that: (i) the petition, in breach of section 3, had been issued within one year of the marriage, or (ii) although there had been no breach of section 3, the relevant period prior to the presentation of the petition specified in section 1(2)(d) or 1(2)(e) had not elapsed.”

In some cases, he had to refer the files to the Queen’s Proctor. The President details the accepted practice to be followed, pending the outcome of the Queen’s Proctor’s investigations and the issue of further guidance, where it is discovered that a decree has been granted notwithstanding a breach of s3, or non-compliance with ss 1(2)(c), 1(2)(d) or 1(2)(e). The guidance includes the appropriate procedure where a new petition is to be issued.

The interim guidance is available here.

 

 

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