Latest insights from our experts
The importance of seeking advice when divorcing
In September 2011 a husband and wife married. They later separated in June 2013 and the husband filed for divorce stating that the parties had been separated for 2 years and that his wife consented to a divorce.
In November 2013, a Decree Nisi was granted. This was later made Absolute in February 2014.
Both parties subsequently remarried and had effectively moved on with their respective lives.
That was until January 2017 when the matter went back before the Court who determined that the original divorce petition had proceeded in error by not relying on the correct facts. The husband and wife had not been separated for a full two years’ at the time of presenting the petition. The judge further ruled that the husband would have permission to amend the petition to rely on the fact of his wife’s behaviour.
The Queen’s Proctor applied to set aside the original Decree Nisi which had been made Absolute, contending that both decrees were void. The parties had of course remarried since pronouncement of Decree Absolute in February 2014.
If the original decrees were set aside, the husband and wife faced possible bigamy charges as a result of their subsequent marriages.
In this most unusual case, the Judge varied the Decree Nisi substituting the wording for a 2 year separation decree for that used in unreasonable behaviour divorces.
What is of particular note, notwithstanding the failures of the court staff and judges during the 2013/14 proceedings to pick up on the errors in the petition, is that the husband represented himself meaning he prepared and filed all documents on his own without legal advice. Had the husband, or indeed the wife, sought legal advice from a divorce lawyer, they would have been advised that they could not file a 2-years’ separation petition as they had not been separated for a long enough period.
Since the 2013 legal aid reforms, many individuals are choosing to deal with family legal matters on their own and not seek any advice. This case should act as a reminder of the importance of seeking the right legal advice as early as possible to avoid errors such as this arising.