Divorces: To find them void could cause couples huge problems
Divorce applications submitted before they should have been and wrongly allowed to proceed due to an error in the courts’ IT system are voidable – but not void, the High Court has ruled.
Sir Andrew McFarlane, president of the Family Court, has given the 158 people affected until the end of next month to argue that their divorces should be declared void, otherwise they will be confirmed.
Under the Matrimonial Causes Act 1973, an application for a divorce order may not be made before a year has passed since the date of the marriage – which the courts have long accepted means a year and a day.
However, in the 79 cases affected by the IT error, the applicants all submitted their applications on the first anniversary of their marriages, ie a day early.
HM Courts & Tribunals Service’s (HMCTS) divorce portal was meant to prevent this happening but an error in the system allowed such applications to be made from 6 April 2022 – when the Divorce, Dissolution and Separation Act 2020 came into force – until the fault was discovered in November 2022.
That was when a judge identified a case which had been submitted a day early and alerted HMCTS.
The system was fixed and the particular case dealt with, but it was not until April 2024 – when another case was found – that HMCTS checked to see if any others were affected.
In all, 96 cases were identified, with 17 where final orders had not been made stopped and the parties directed to restart their applications.
In the remaining 79, as final orders had been made, the Lord Chancellor had to present the application to the court for a declaration that the marriages no longer subsisted as of the date of the final order.
McFarlane P said: “It is of note that if HMCTS had conducted a proper investigation in November 2022 when the problem was first drawn to their attention, it is likely that none, or almost none, of the 79 cases would have had final orders made and the present application would not have been necessary.”
The central question was the legal consequence of not complying with the time threshold, as the 1973 Act did not specify one. This meant the court had to impute Parliament’s intention.
McFarlane P, ruling with Her Honour Lynn Roberts, sitting as a deputy High Court judge, decided it was “inconceivable” that Parliament would have intended that a final order made in these circumstances must automatically be set aside as void and having no legal standing.
The consequences would be for divorced couples to find they were still actually married, to void any remarriages, put the status of children born after the supposed divorce in doubt, and mean financial remedy orders made on divorce would be set aside.
“More generally, every divorce is likely to mark a period of unhappiness for the spouses, in some the relationship may have been abusive and harmful,” McFarlane P said. “Discovery that the marriage is subsisting may be a cause of trauma to one or both parties.”
In imputing the intention of Parliament, he said, “the more problematic the outcome of holding that a final order of divorce must be void, the less likely it is that Parliament will have intended that outcome…
“We have therefore concluded that each of the 79 final divorce orders now before the court is voidable, rather than void.”
The 158 affected people have been given until 31 January to set out in a statement “whether they wish the court to determine that their final divorce order should be found to be void, and if so, on what grounds”. Otherwise they need take no action.
The court will then make the declarations sought by the Lord Chancellor in cases where there are no objections or consider directions in cases where there are.
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