Divorce court blunders: some couples may STILL be married
Scores of newly-divorced couples may still be married because of a series of blunders by officials.
Those affected were granted legal break-ups too quickly, a senior judge said yesterday.
In some cases, couples submitted divorce petitions before they had been married a year – the minimum period. In others, officials approved divorces before the applicants had spent enough time apart.
Individuals who have remarried are at risk of having committed bigamy – an offence punishable with seven years in prison.
The mistakes appear to have been made at the 11 divorce centres set up in England and Wales since 2015. All petitions for divorce – the documents which begin the legal process – must be submitted to one of the centres. They are staffed by legal advisers under the supervision of judges.
Sir James Munby, the most senior divorce judge, has ordered courts to apologise for the ‘devastating impact’ the errors will have on those who thought they had formally separated.
The news of the mishandling of divorces was issued in a technical briefing to the courts.
It contained no information on how many people will be affected – numbers could range from a handful to thousands.
Sir James, who is president of the family division of the High Court, said: ‘Very recently a number of cases have been brought to my attention where decrees nisi and absolute have been granted notwithstanding that the petition had been issued within one year of the marriage.’
He said that in such cases the divorce would be null and void and that he had called in the Queen’s Proctor – a government lawyer employed to deal with family law cases – to tell the courts to strike divorces out.
Sir James said: ‘Judges will wish to be alert to the potentially devastating impact on litigants of being informed that there is a problem with their decree. Especially (and this is unlikely to be known to the court when the first communication is made) a litigant who believes they have been validly divorced has remarried or is due very shortly to remarry.
‘Communications should accordingly be expressed in appropriately sympathetic and apologetic language.’
Said Fathers4Justice founder Matt O’Connor: ‘The family courts are divorced from reality, dysfunctional and not fit for purpose. They are incapable of providing even the most basic level of competency.’
‘It’s not only a scandal, but yet another stain on our justice system.’
One lawyer said the problem in some cases might simply be that of men and women filing for divorce on the first anniversary of their marriage instead of waiting one more day as the rules require.
He added: ‘Under the current rules, the position would be very severe and divorces would become null and void.
‘Sir James is proposing a solution to fast track those cases which have perhaps inadvertently breached proper procedures. It is worth pointing out, though, that because of the sheer volume of workload being handled by family courts, resolution may not necessarily be as quick as either he or the couples involved would like.’
Margaret Heathcote of Resolution, a body which represents family law firms, said: ‘With the closure of many courts and fewer resources for the family justice system more broadly, it is inevitable that there will be an impact in one form or another.
‘The fact that the president has had to issue this guidance suggests there are basic mistakes being made that simply shouldn’t happen.’
Harry Benson, of the Marriage Foundation think-tank, said officials should be on top of the law because couples were unlikely to know what the legal process entailed. He added: ‘Whether there are tens or hundreds or thousands of couples who remain married despite thinking they are divorced, the situation is absurd.
‘Couples who haven’t waited the full two or five years can conclude things by switching to the sham of immediate fault-based divorce. But what about those who have remarried? Since they cannot enter polygamy, their new marriage is null and void.’
There were more than 100,000 divorces in England and Wales in 2016.
YOUR QUESTIONS ANSWERED
Who is responsible?
Officials at some of the 11 divorce centres set up in 2015 have approved legal break-ups in breaches of the rules.
What did they get wrong?
No divorce can go through if the initial application is handed in less than a year after the couple married. And couples who have been separated cannot divorce unless they have spent sufficient time apart – two years if both are agreed on divorce, five years if not. An unknown number of divorces have been approved by legal advisers where these conditions have not been met.
What should you do if you are affected?
If you failed to wait a full year, apply again when this time is up. Those who have failed to see out their two- or five-year separation periods in full can opt to apply for a fault-based petition instead. This means either the husband or wife must be accused of adultery or unreasonable behaviour. The £550 petition fee will be waived for applicants second time round.
What happens if you have remarried?
Their new marriage is invalid. They will also have broken the law against bigamy. Prosecutions are highly unlikely however.
Has this happened before?
The last attempt to introduce fault-free divorce, by John Major’s Tory government in 1996, proved unworkable and his divorce laws were repealed. It was the high number of bogus divorces that helped lead to the creation of the new divorce centres. In 2014 it was found that 180 petitions had been made from a single false address.
DIVORCE: THE FACTS
* To apply for a divorce you need to prove your marriage has broken down citing one or more of 5 reasons including adultery, unreasonable behaviour, desertion, separation of 2 years (and agree to the divorce), separation of 5 years (even if your spouse disagrees.
* To disagree with a divorce fill in the acknowledgement of service form and return it within 8 days. Fill in the part that says you’re defending the divorce. After you return the form, you have up to 21 days to say why you are defending the divorce. This is called ‘giving an answer’. Read more here.
* There were more than 100,000 divorces in England and Wales in 2016. Office for National Statistics, 2017
* London is the divorce capital of the world following a series of huge pay-outs in favour of ex-spouses. The Times, 2017
* A sixth of all divorce cases heard by English courts involve foreign nationals. The Times, 2017
* An estimated 42% of marriages fail. Around half of these divorces are expected to occur in the first 10 years of marriage. Office for National Statistics, 2017
* 61% of divorces were petitioned by the wife. Office for National Statistics, 2017
* The most common grounds for divorce was unreasonable behaviour, with 36% of all husbands and 51% of all wives petitioning for divorce on these grounds. Office for National Statistics, 2017
* Divorces in 2016 are 30% lower than the most recent peak in divorce numbers seen in 2003. Office for National Statistics, 2017
* The average (mean) age at divorce for opposite-sex couples in 2016 was 46.1 years for men and 43.7 years for women. The average age at divorce has increased year-on-year since 1985, rising by more than 8 years for both men and women. Office for National Statistics, 2017
* The divorce rate for opposite-sex couples was highest among men aged 45 to 49 and women in their thirties (ages 30 to 39). Office for National Statistics, 2017
* The median duration of marriage (the mid-point of all durations) for divorces granted to opposite-sex couples in 2016 was 12.0 years, increasing slightly from 11.9 in 2015. Office for National Statistics, 2017
* Only half of today’s millennials will marry, whereas 90% of today’s 60 year olds married. The Marriage Foundation, 2017
* Just 52% of 20-year-old men will get married. Benson 2014, Office for National Statistic
* Spousal maintenance in England and Wales is granted regardless of an ex-spouses ability to support themselves. Fathers4Justice, 2017
* There are no set rules for maintenance payments and no cap on the time-limit for maintenance payments. These can be on-going and last a lifetime unless an ex-spouse remarries. Fathers4Justice, 2017
* Other countries like Sweden do not offer spousal maintenance for ex-partners. Alimony is only paid in extreme circumstances when it can last a maximum of just 6 months. Ex-spouses are encouraged to be financially independent following a divorce and are responsible for their own provision. Fathers4Justice, 2017
* The average cost of a wedding is now £15,000. Confetti, UK Wedding Statistics 2017
