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Divorces set aside by the High Court

Posted on 23rd April 2019 in Family Law

Posted by

Aimee Aspinall

Chartered Legal Executive
Divorces set aside by the High Court

The High Court has again delivered judgments in relation to applications by the Queen’s Proctor to set aside divorce decrees in four different cases on the ground that the petitions breached the 1 year bar. The 1 year bar is set out in section 3 of the Matrimonial Causes Act 1973 and states that neither party to a marriage may commence divorce proceedings before the couple have been married for 1 year.

In all four of the cases there were failures by court staff and judges to spot the problem with all of the petitions, being that they were each issued before the parties had been married for a year. In three of the cases, the divorce decrees were set aside and one of those cases is explored in detail in this article.

Baron v Baron (represented)

The parties were married on 26 July 2014. The husband’s behaviour petition was sent to the court under cover of a letter dated 17 June 2015, although the petition had been post-dated 27 July 2015. On 8 July 2015 the court wrote to the petitioner pointing out that the papers had been post-dated and the usual practice would be to return them but in this instance the court agreed to hold the petition and process it after 28 July 2015. It was later marked as being issued on 6 August 2015. A final divorce decree was granted to the husband on 23 February 2016.

The problem was later identified and placed before a Judge and an urgent telephone hearing arranged on 4 October 2016. An order was made following the telephone hearing which ordered, among other things:

  1. The original decrees nisi and absolute were set aside
  2. The petition be re-issued and requirements for service be dispensed with
  3. The court treated an oral application by the husband as his application for decree nisi
  4. Decree nisi was granted immediately
  5. Decree absolute would be granted immediately, based on the oral application of the husband, after 7 days.

Decree Absolute was granted on 11 October 2016.

The case was later referred to the High Court and the “new” petition was dismissed and resulting decrees set aside. The High Court held that there was in fact no “new” petition issued at Court on 4 October 2016. Rather the documents had been marked ‘AMENDED’ but bore the same case number as the original petition in 2015.

One of the Queens’ Proctor’s applications, in the case of Bird v Bird, failed:

Bird v Bird

The parties married on 16 January 2015. The Wife’s behaviour petition was issued by the family court on 13 January 2016. The petition was purportedly amended to correct an address and was re-signed on 3 March 2016. A final divorce decree was granted on 13 September 2016. The problem was later identified. The Court dealt with the matter in a similar way to Baron v Baron and a fresh decree absolute was granted on 14 November 2016, the previous decrees being set aside. The new petition and decrees all, unfortunately, bore the same case number as the original proceedings.

The Queen’s Proctor’s plea to set aside the decree nisi and dismiss the second petition was dismissed by the High Court as the second petition was treated as valid and the administrative error by the court being held as no ground to set aside the decrees.

Comment

These unfortunate cases highlight the need for parties to ensure they take the right advice and ensure that even the most straightforward of the underlying principles of the Matrimonial Causes Act are not overlooked. More often clients are seeking advice about divorce proceedings when they have not been married for a year. Whilst it is possible to prepare the documents in advance, it is vital that no steps are taken to issue proceedings to ensure that the law is fully complied with and the divorce is valid.

Please contact our experienced team of family law solicitors on 01392 207020 or by emailing enquiries@tozers.co.uk for your free initial consultation.

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