IS YOUR DIVORCE DEFECTIVE?

Posted on: May 10th, 2018

It has come to light that as a result of errors in the drafting of petitions and those not being checked properly by the court service, some divorcing or divorced couples could have defective divorce petitions and remain married to their previous spouse.

A defective divorce in these circumstances will be for one of 2 reasons.

  1. Issued a divorce petition less than one year since the date of marriage.
    Before you can start divorce proceedings you have to have been married for one year. It appears that some couples have started divorce proceedings after less than one year and they have been allowed to proceed.
  2. Not been separated for the required period of time.
    Included among the ‘grounds’ for divorce are that the person bringing the divorce, the “petitioner”, and respondent have lived apart for a period of at least 2 years. The law on separation is not always as straightforward as you would think, for example you can still live in the same house but technically be separated for the purposes of a divorce. What has happened is that people have started divorce proceedings early and the court hasn’t noticed. In some cases, the divorce has concluded and decree absolute granted and nobody has noticed this error until now.

What does this mean?

If you have not yet reached the decree nisi stage you can apply to amend the petition on a different ground. If you have not been married for a year when the petition was issued then the court will dismiss the petition and you start again.

If decree nisi or absolute has been granted then the court may, depending on your circumstances, allow the petition to be amended to either unreasonable behaviour or adultery. Alternatively, the court may insist that a new petition is issued once the period of separation has passed. In those cases the court will waive the fee and expedite the process.

If decree nisi or decree absolute has been pronounced when it shouldn’t have been, then the divorce could be null and void. This means that you could remain married to your ex spouse despite having decree absolute. In some cases you may have re-married and a word of warning, your re-marriage could be invalid if you were not actually divorced.

Any financial orders may be unenforceable in the absence of a valid Decree Absolute too, though whether the court would allow you to go back on the terms of a previous agreement remains to be seen.

How can we help?

If you think you have been affected by this, particularly if you were a litigant in person for your divorce and you are unsure, or have heard from the court that you are affected then you should seek legal advice. The Family team at Coffin Mew will be able to review the documentation from your divorce and advise you on the steps needed to rectify the issue if there is one.

Elizabeth Hughes is a Solicitor in the Family team in our Portsmouth office