The High Court recently ruled on an application by the Lord Chancellor for declarations that the...
The High Court recently ruled on an application by the Lord Chancellor for declarations that the marriages of 79 couples no longer subsisted on the date of their final divorce orders, despite those divorce orders having been applied for a day too early.
Under Section 3 of the Matrimonial Causes Act 1973, 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. This has long been accepted to mean that the first day a divorce order can be applied for is the day after the first anniversary of the marriage. A fault in the digital system used by HM Courts and Tribunals Service allowed applications for divorce orders to be made one day early. By the time the fault had been rectified and a search undertaken for applications made a day early, final divorce orders had already been made in 79 such applications.
In determining whether those divorce orders were void or voidable, the Court considered a substantial body of case law. The Court was satisfied that the correct approach to interpreting a provision such as Section 3, where the requirement was clear but the consequences of non-compliance were not expressly identified, was to discern what Parliament would have intended the consequences to be.
The Court observed that to hold that non-compliance with Section 3 must automatically lead to a divorce order being set aside would be to impute a very high level of intention to Parliament, which would be wholly disproportionate in the present cases and would be likely to damage the public interest in achieving legal certainty as to marital status. The Court noted the problems that would result, such as any subsequent marriage being void and the status of children born after the supposed divorce being in doubt. The Court found that the divorce orders were voidable, rather than void.
None of the parties to the marriages had indicated that they opposed the Lord Chancellor's application, but the Court would give them an opportunity to set out whether they wished their divorce order to be found to be void, and if so, on what grounds. If neither party to the marriage argued that the divorce order should be set aside, the declaration sought by the Lord Chancellor would be granted.
