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Reported Case

Voidable divorce: wife remarried after erroneously being granted a divorce from the courts - M v P [2019] EWFC 14 (22 March 2019) (25 March 2019)

Date: 25/03/2019
Duncan Lewis, Reported Case Solicitors, Voidable divorce: wife remarried after erroneously being granted a divorce from the courts - M v P [2019] EWFC 14 (22 March 2019)

Duncan Lewis Solicitors represented a wife whose divorce was sought to make void in an application made by the Queen’s Proctor.

History of case

The matter concerns an application made by the Queen’s Proctor (‘QP’), the QP is the Crown’s solicitor representing in matters of probate and divorce. The application at hand concerned the QP’s intervention in procedural irregularities occurring in respect of five divorce matters. The application was placed before Sir James Munby, the previous President of the Family Division and Head of Family Justice. We represented the client wife in one of the five divorce matters.

The Application, made by the QP, sought to make void the wife’s divorce. The QP’s application stemmed from an error in the divorce petition arising from an innocent mistake made by the husband.

Both the husband and the wife had re-married, following the divorce. A reversal of the court’s decision to grant the divorce would have meant that the wife would have committed bigamy in Brazil.

Background

The parties had married on 19th September 2011. They sought to divorce on 14th June 2013 on the basis that they had lived apart for a continuous period of two years stating that “the Respondent has refused to share the same household as the petitioner since the marriage took place”. A decree nisi was pronounced on 21st November 2013 and the decree absolute was obtained on 24th February 2014. On the facts of the petition only 22 months had elapsed and therefore there had not been 2 years separation to fulfil the criteria of section 1(2)(c) of the Matrimonial Causes Act 1973.

The husband remarried on 26th January 2015 under the belief that he was divorced.

In October 2016 the error was spotted by the court and the husband returned on 18th January 2017 before District Judge Middleton-Roy who allowed him to amend the petition to rely upon the wife’s unreasonable behaviour and confirmed that this did not invalidate his marriage to his new partner.

The wife remarried on 24th March 2017.

Section 8 of the Matrimonial Causes Act allows the Queens Proctor to intervene up to the point at which the decree absolute is made or after a void decree absolute. They sought to intervene on the basis that “it appears that the decrees have been granted contrary to the statutory provisions contained in section 1 of the Matrimonial Causes Act 1973.”

Judgment

The judge heard detailed legal argument from Counsel Janet Bazley QC and Katherine Dunseath regarding various previous case law and how it differed from the present case. Sir Munby concluded that the parties were victims of the justice system and they would suffer great hardship were the decrees disturbed. There would be potential repercussions with the Home Office as both new spouses were Brazilian nationals and in Brazil bigamy is a criminal offence.

Sir James Munby went on to say “There is, as it seems to me, irresistible force in the point made by Ms Bazley and Ms Dunseath that people are entitled to plan their lives in accordance with judgments of the court; that in this case the parties have, essentially, twice been granted relief by the courts (first when the decrees were originally granted; secondly, when the decrees were upheld by District Judge Middleton-Roy); and that it would be unjust to both parties to determine that they have been living their lives under the auspices of a status twice vindicated by the courts, but which, nevertheless, turns out to be false.”

In order to rectify the decree nisi Sir James Munby exercised his power under FPR rule 4.1(6) to bring the decree nisi in line with the petition that had been amended by District Judge Middleton-Roy previously. Therefore it was determined that the divorce was voidable but not void and the divorce therefore remains valid and in force.

Funding

The parties were represented by Sundeep Budwal and Paul Nuttall of Duncan Lewis Solicitors and Janet Bazley QC and Katherine Dunseath on a pro bono basis due to Legal Aid being unavailable in this matter. Unusually, in his judgment Sir James Munby set out details of the wife’s financial circumstances to illustrate the challenges faced by litigants in person.

Legal Aid was not made available to the wife due to her gross income exceeding the maximum gross income threshold, set down by the LAA, of £2657.00.

Her housing costs which were £1500 per month, were capped by the LAA to £545. The LAA did not take into account that the wife provided maintenance payments to her adult son. Her son lived with her, suffered from mental health illness, and only worked part time hours.

The wife was therefore considered to be ineligible for help with her legal fees in a matter where action was being taken by the state due to an error by the judiciary that could have had far reaching consequences for the parties.

Sir James Munby writes in the judgment “The Bar, I am sure, will never fail in its obligation to stand between Crown and subject. And the same of course goes for the solicitors’ profession. But there is something profoundly distasteful when society, when Government, relies upon this as an excuse for doing nothing, trusting to the professions to do the right thing which the State is so conspicuously unwilling to do or to provide for.”

Representation

The wife was represented by solicitors Sundeep Budwal and Paul Nuttall from our family and child care department who instructed Ms Janet Bazley QC and Ms Katherine Dunseath both of 1GC Family Law.

 

Find full details of this case on Bailii’s website here.
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