What a difference a day makes. 24 little hours...

79 divorces are at risk of being cancelled as a result of a problem with the government online divorce portal.

The High Court is being asked to rule on whether these divorces should stand or whether they should be set aside because the applicants were allowed by the portal to commence their divorce applications a day earlier than allowed. The Times has reported that “Almost 80 divorces could be invalid after computer glitch” (or in other words, 79 divorces. I’m not sure why the headline writer thinks that rounding it up to “almost 80” is somehow a snappier headline.)

Between 6 April 2022 (the day on which the new no-fault divorce procedure was introduced) and 30 April 2024, 96 divorce applications were made on the first anniversary of marriage, with a final divorce order granted in 79 cases. The Secretary of State for Justice and Lord Chancellor has asked the court to rule that the divorces are voidable, ?rather than void, meaning they would still stand. The justice secretary’s KC argues that that voiding the divorces would have “highly unfortunate and highly unwelcome” consequences for the couples concerned.

If they are set aside, this could have very difficult consequences for the parties. Some of them may already have remarried, which renders their new marriages bigamous. Others will have obtained financial orders dividing their income and assets between them; those orders would also have to be set aside. (The 17 other divorces started ?on the anniversary of the wedding presumably had not sorted out their finances by the time the problem came to light, and luckily for them they had not got around to applying for the final order yet.) Financial orders in divorces are not freestanding orders; they have to be made as part of the divorce. The court cannot make a financial order until the conditional order has been pronounced int the divorce. If the divorce final order is set aside, the divorce application has to start again. The financial order would be equally invalid as it cannot exist without the divorce application.

I once had a case where the court unexpectedly sent me a decree absolute (the old name for a final order). I was surprised to receive it as I was acting for the petitioner and I had not made the application. I immediately faxed the court to ask why it had made the decree absolute. Half an hour later the court faxed me an order made by the judge, barring both parties from remarrying pending the court’s decision about whether the decree absolute should be set aside. It transpired that the respondent (who was not legally represented) had made the application and the court had simply granted it. The respondent cannot apply for the decree absolute in that way; unlike the petitioner who can apply easily, an application by the respondent has to be made on-notice (i.e. there has to be a hearing whether the court considers whether to grant the respondent permission to apply). I have long suspected that the respondent may have stated on the application that that he was the applicant, because, after all, he was the person making the application. (The application form started calling the parties applicant and respondent a long time before no-fault divorce arrived in 2022 when we stopped referring the applicant for a divorce as the petitioner. See my blog here for why we should stop calling parties applicant and respondent).

In that case, neither party had a chance to remarry before the district judge ordered that they couldn’t do so, but in the case of the 79 divorces above, some of them may have had the chance to remarry.

The reason for a delay of a year before people can marry is, I have always assumed, to ensure that where a marriage hits the skids early on, the parties do not rush off to court for a divorce, only to regret it later. (When the Matrimonial Causes Act 1973 first became law, it was three years, not one.) A one year qualifying period is probably sensible, although it can cause problems where the parties’ marriage, albeit very short, is nevertheless definitely over. What if they need to urgently sort out financial issues, but cannot wait for a year until a divorce can be commenced?

I recall a case where a marriage broke down during the first year of marriage and the a husband started to dispose of assets in an attempt to defeat the wife’s claim for a share of them. The wife needed to urgently apply for an order freezing the assets. No application for such an order can be made without an application for a financial remedy order being underway. The wife couldn’t apply for a financial remedy order without a divorce being underway, but it wasn’t possible to start the divorce proceedings until the parties had been married for a year. Therefore, initially there had to be an application for judicial separation, an alternative to divorce which is really designed for couples who have? a moral objection to divorce. It resembles a divorce, but does not bring the marriage to an end. It nevertheless allows the court to make financial orders, including a freezing order. Most crucially, the year and a day rule does not apply, so the judicial separation application could be commenced immediately.

But why a year and a day? Why not just a year?

There may be some ancient reason to justify this, but perhaps one that is largely lost in the mists of time. I was surprised to be told recently that the reason why the period between the conditional order and final order is a minimum of six weeks is that it is designed to reflect a women’s menstrual cycle. It was, I was told, designed to ensure that the wife is not pregnant with the husband’s child when the marriage is ended. Frankly, that seems downright bizarre in 2024. (I’m not sure this theory is right; when the Matrimonial Causes Act 1973 was first passed by Parliament, it provided for a six month period, not six weeks.)

The 79 divorces are problematic as the law states that a divorce application can only be commenced a year and a day after the marriage. Or rather, it says “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 seems simple, but only at first sight. Confusingly, the statute does not say a year and? a day. The more complex part of the arguments have not been reported by the media, but I think that the problem may be as follows.

If you married on 1 March 2022, then surely you can start the divorce application on 1 March 2023? But, I think, if you got married at, say noon, then you haven’t been married for a year until noon on 1 March 2023. If your divorce was started at 11 am, you haven’t been married for a year, so the law provides that you have to be married for at least a year and a day. Therefore, I can only assume that the court will have to decide whether when the statute says one year, in fact, that means one year and a day.

It would be very harsh indeed if the High Court decided that the final orders should all be set side in these 79 divorces, simply for the sake of one day. The problem is described as a computer glitch in the news reports, but I suspect that it is probably more of a design flaw. Either way, it seems to be the fault of HM Courts & Tribunals Service.

It would also be rather hypocritical if the court decided to invalidate these divorces. The Family Court recently refused to set aside a final order that was made by the court when a solicitor accidentally applied for it on the wrong case on the portal. I hope for the sake of the 158 people affected in these 79 cases that the court is pragmatic about it and lets the divorces stand.

9 November 2024

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