If you think you’re divorced, you probably are but some divorces are in fact ‘defective’.
It has recently been revealed by Sir James Munby, the President of the Family Division (of the High Court of England & Wales), that there are instances where some people who think they were properly divorced are not.
The Matrimonial Causes Act 1973, section 3, imposes an absolute bar on divorce petitions being presented within 12 months of marriage.
Where a petition has been issued in breach of that section, it is null and void. The consequence is that any decree nisi or decree absolute purportedly granted from such a petition is likewise null and void and nor can the petition or application be subsequently amended. So, consequently, if a party has subsequently remarried that marriage is invalid.
There are 5 facts that a petitioner can rely on when presenting a petition to say why the marriage has broken down. Included in those is desertion (the respondent has to have deserted the petitioner for a continuous period of two years), 2 years separation with the consent of both parties or 5 years separation.
The problem leading to defective divorces can therefore occur in one of two ways:
- the petition had been issued within one year of the marriage (so in breach of section 3 of the Matrimonial Causes Act 1973), or
- although there had been no breach of section 3, the relevant period prior to the presentation of the petition specified in desertion, 2 year separation cases or 5 year separation cases had not elapsed.
Sir James Munby has therefore issued guidance on dealing with ‘defective divorce petitions/decrees’.
Munby says: ‘HMCTS [Her Majesty’s Courts Service and the Tribunals Service] 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 (and this is unlikely to be known to the court when the first communication is made) a litigant who believes that they have been validly divorced has remarried or is due very shortly to remarry. Communications should accordingly be expressed inappropriately sympathetic and apologetic language.’
It is therefore essential that when obtaining a divorce you seek expert advice to ensure that you do not fall into this trap.
If you require further information please contact our Specialist Divorce team on 0800 088 6004.