At the end of term, the High Court handed down judgment in a challenging case, whose solution lay in the application of a much-forgotten 53-year-old judgment of the ‘pirate-like’ Sir Jocelyn Simon P to seemingly irresolvable issues caused by errors in the digitalisation of the divorce process.

Digitalisation

Taking a bold step into the future, in 2017 HMCTS began digitalising divorce petitions, and over the next few years it became the norm, first for litigants in person, and then for solicitors, to apply on the divorce portal. On 6 April 2022, the Divorce, Dissolution and Separation Act 2020 came into force, with all divorces to be managed digitally. Business has boomed: since April 2022, just under 10,000 divorces a month have been issued and dealt with on the portal.

DDSA 2020 marked a major change in divorce law. It removed the need to prove any of the facts previously required to support the ground of divorce – it swept away the concept of fault. But one part of the Matrimonial Causes Act 1973 not substantively changed by DDSA 2020 other than the terms used is s 3, which reads:

‘An application for a divorce order may not be made before the expiration of the period of one year from the date of the marriage.’

The rule of one year and one day

It has long been the law that the period of one year in this context means one year and one day: see, for example, the famous exposition by Lord Diplock, in Dodds v Walker [1981] 1 WLR 1027, a case that went from Grantham County Court to the House of Lords. It is a principle much broader than family law, which has been consistently applied by the courts since Lester v Garland (1808) 15 Ves. Jun. 248. In Freeman v Read (1863) 4 B. & S. 174, 184, whilst examining the exemption of the tything of Walcot from the highway rates of the parish, Cockburn CJ described the rule as being ‘in accordance with common usage … and with the sense of mankind’.

Thus, in this context, if a couple are married on 1 January 2022, an application for divorce cannot be made until 2 January 2023. The thinking is that a minimum statutory time period is vital in affording married couples a period of reflection before applying for divorce, marriage continuing in our modern law to be a status of importance (see, for example, the difference in financial relief available between, on the one hand, MCA 1973 and, on the other, Sch 1, CA 1989 and TOLATA 1996).

The 79 divorced couples

But in a swathe of cases, examined by the court in The Lord Chancellor v 79 Divorced Couples, errors occurred. In the 79 cases looked at by the court, applicants submitted their applications on the first anniversary of their marriages: in other words, a day early. The divorce portal was meant to prevent such a thing occurring but a validation error in the new system allowed such applications to be made from 6 April 2022 until the fault was discovered in November 2022, when a judge identified the issue and alerted HMCTS. But it was only in mid-April 2024, when a legal adviser found another case which had been submitted a day early and referred it to a judge, who in turn alerted HMCTS, that a full search was undertaken and 96 cases were identified which had been submitted a day early.

The problem presented was significant. The Lord Chancellor established that at least 11 of the people affected had remarried; others had given notice of intention to remarry. Nineteen had commenced financial remedy proceedings and 17 final financial remedy orders had been made by the courts.

The legal question

The legal question raised by the case related to the status of these divorces. Were they really void, as the existing case-law suggested, meaning that those who thought they were divorced in fact remained married (thus presenting numerous issues, especially for those who had re-married; concluded financial remedy proceedings; organised their financial, property, tax, inheritance or immigration affairs on the back of what they understood to be their divorce; or had left marriages characterised by domestic abuse)?

The 29 July 2019 President’s Guidance: Defective Divorce Petitions / Decrees put the point strongly:

‘4. It is clear from the decisions of Sir Stephen Brown P in Butler v Butler [1990] 1 FLR 114 and of Sir James Munby in Baron v Baron [2019] EWFC 26 (and see also the decision of Barnard J in Woolfenden v Woolfenden [1984] P 27) that:

(1) Where a petition has been issued in breach of section 3, it is null and void and the court has no jurisdiction to entertain it; with the consequence that any decree nisi or decree absolute purportedly granted is likewise null and void.

(2) The defect cannot be cured by amendment of the petition.

(3) The court has no power to grant discretionary relief.

(4) In consequence, if a party has subsequently remarried that marriage is invalid (see Woolfenden).’ (Emphasis added.)

Alternatively, could an argument be found that the divorces were voidable, and thus there to exist a judicial discretion in respect of their status?

A solution

To answer that, the Lord Chancellor applied, with the affected people the 158 respondents, under s 55(1)(c) of the Family Law Act 1986 and the inherent jurisdiction to make declarations that on the date of the final order in their respective divorce proceedings their marriages no longer existed.

Given the significance of the issue, the High Court sat as a Divisional Court. The Lord Chancellor’s core argument was that the court should decline to follow the seam of strongly persuasive and ostensibly binding case-law, relying on the R v Greater Manchester Coroner, ex parte Tal [1985] QB 67 principle: namely, per the Lord Chancellor, that the line of decisions was inconsistent with the overarching approach to statutory interpretation established by decisions of the House of Lords in R v Soneji & Anor [2005] UKHL 49 and R (Majera) v Secretary of State for the Home Department [2021] UKSC 46.

The court delicately described the significant difficulties presented by the existing case-law: ‘it is right to acknowledge that the path through the previous authorities on whether a decree absolute of divorce, or, in modern terms, a final order of divorce, is “void” or “voidable” is not, at first blush, an easy one’, at [13]. Nevertheless, despite the route being thorny, the court ‘found the arguments presented by the Lord Chancellor and the Secretary of State to be entirely convincing’, at [12]. The judgment repays careful reading in tracing the legal position and declining to follow a sequence of decisions (including from the most eminent family judges):

• Woolfenden v Woolfenden [1948] P 27, per Barnard J.
• Butler v Butler (Queen’s Proctor Intervening) [1990] 1 FLR 114, per Sir Stephen Brown P.
• Callaghan v Hanson-Fox [1992] Fam 1, per Sir Stephen Brown P.
• Manchanda v Manchanda [1995] 2 FLR 590, CA.
• Rapisarda v Colladon; 180 Irregular Divorces [2014] EWFC 35, per Sir James Munby P.
• M v P (Queen’s Proctor Intervening) [2019] EWFC 14, per Sir James Munby P.
• Baron v Baron (Queen’s Proctor Intervening) [2019] EWFC 26, per Sir James Munby P.
• Shahzad v Mazher [2020] EWCA Civ 1740.

And the 29 July 2019 President’s Guidance.

Outcome

The court’s conclusion is summarised at [39]:

‘previous attempts to discern the consequences of non-compliance by focusing on the court's jurisdiction must now be seen to have been adopting the wrong approach. As the agile, and at times contorted, judicial attempts to categorise or reconcile previous decisions into specific categories based on jurisdiction demonstrate, such an approach is, in any event, highly problematic in principle.’

Instead, the proper approach was that set out by Sir Joceyln Simon P1 in the lesser-known case of F v F [1971] P 1, itself an authoritative decision, which had in turn been endorsed by the Court of Appeal in P v P [1971] P 217, but had disappeared beyond the horizon as the case-law sailed on. Sir Jocelyn’s conclusion had in its decade been echoed by Sir George Baker P in Dryden v Dryden [1973] Fam 217 and Rees J in Wright v Wright [1976] Fam 114.

As such, the court determined, at [42], that:

‘These strong policy drivers justify holding that the intention of Parliament cannot have been that non-compliance with the time threshold in MCA 1973, s 3(1) must in every case render any resulting divorce order void, rather than voidable. We have therefore concluded that each of the 79 final divorce orders now before the court is voidable, rather than void.’

Stage 1 of the case – the status of the final divorce orders – has thus concluded, separating from decades of case-law in the process. Focus now turns to stage 2, and the question of whether, for any of the 79 affected former couples, the voidable discretion should be exercised to conclude that their final divorce order is void. It is hoped that stage 2 will be resolved promptly in the new year.

In the meantime, hurrah to Sir Jocelyn.