Baron & Others (4 Defective Divorces) [2019] EWFC 26 – Defective divorces judgment: Sir James Munby

26 / 06 / 2019

On 4 April 2019, Sir James Munby (sitting as a Judge of the High Court), heard an application by the Queen’s Proctor for the setting aside of decree nisis (the penultimate stage of the divorce) and decree absolute (the last part of the divorce, ending the marriage) in four different cases and this case considered the previous decision of Sir Stephen Brown P in Butler v Butler.

The four different cases referred to above were as set out below. The reason that they were being considered is that Section 3 of the Matrimonial Causes Act 1973 confirms that “No petition for divorce shall be presented to the court before the expiration of the period of one year from the date of the marriage” and it had come to the Queen Proctor’s attention that this had in fact happened in the below mentioned cases.

Campbell- Anderson v Anderson

The parties married on 23 August 2012 and the petition was received and issued by the Court on 28 May 2013 – less than 1 year from the date of marriage.

Checova v Ilyas

The parties married on 28 May 2015 and the petition was issued on 20 May 2016 – again, less than 1 year from the date of marriage.

Baron v Baron

The parties married on 26 July 2014. A petition was received by the Court on 22 June 2015 – with the petition dated 27 July 2015. The Court wrote to the Petitioner’s solicitors confirming that in the future that they would not accept post-dated petitions. The petition was marked as being issued on 6 August 2015.

The Court later indicated that the petition was issued less than 1 year since the date of the marriage and therefore contrary to section 3 of the Matrimonial Causes Act 1973 and therefore void. There was a discussion about the petition being reissued; however, that was not done – the original petition was instead annotated to say “Rec’d 4/10/16 * AMENDED*”.  This was therefore not deemed as sufficient, with it being said that there was no “fresh, independent petition” but instead an “amendment of the existing petition”. This too therefore failed, as did the original petition, as whilst the solicitors had post-dated it – it had been presented to the court before the expiration of the period of one year from the date of the marriage (note the wording in the Matrimonial Causes Act 1973, as referred to above).

Bird v Bird

The parties married on 16 January 2015.

The petition was issued on 13 January 2016 – some 3 days early.   The Petitioner then resigned the petition on 3 March 2016 (allegedly to correct the address of the other party – the Respondent).  Decree Nisi and Decree Absolute were later granted based on that petition.  These were later set aside.

Butler v Butler and the current hearing; Baron & Others (4 Defective Divorces) [2019]

The decision of Sir Stephen Brown P in Butler v Butler was that:

“(1)  ‘ Where a petition has been issued in breach of section 3 [that being the 1 year bar], it is null and void and the court has no jurisdiction to entertain it; with the consequence that any decree nisi or decree absolute purportedly granted Iikewise null and void.

(2) The defect cannot be cured by amendment of the petition.

(3) The court has no power to grant discretionary relief”.

In the current hearing in question, Baron & Others (4 Defective Divorces) [2019] EWFC 26, the law as set out in Butler v Butler was upheld by Sir James Munby as having been correctly decided, with him confirming that it must be followed. Sir James Munby indicated that:

” i) First, and focusing on Sir Stephen’s judgment itself, it is clear, compellingly articulated and, in my judgment, plainly correct for all the reasons Sir Stephen gave.

  ii) Secondly, that conclusion is reinforced if one locates it with the entire jurisprudence as I analysed it in M v P

iii) Although Leggatt LJ in Manchanda v Manchanda [1995]… doubted the decision in Batchelor v Batchelor [1984]…, he, nor anyone else, has questioned the correctness of the decision in Butler v Butler [1990]”.

What can we learn from this?

  • The one year rule is an absolute bar.
  • It is about the date that the petition is presented to the court – petitions should not be post-dated but sent to the Court early – that is still in breach of the statute.
  • Check dates carefully!
  • If an error in respect of the date/1 year rule is discovered at a later date – do not attempt to simply amend the petition – a new/fresh one must be prepared and presented to the Court in order to avoid the risk of it being declared null and void at a later date, putting the parties back to square one.