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Baron & Others (4 Defective Divorces) [2019] EWFC 26

Sir James Munby upholds the decision of Sir Stephen Brown P in Butler v. Butler, The Queen’s Proctor Intervening [1990] 1 FLR 114 as correct and properly to be followed; where a divorce petition has been issued in breach of section 3(1) MCA 1973, then the petition is null and void and the court has no jurisdiction to entertain it. This defect is not curable by amending the original petition. The court has no power to grant discretionary relief in such circumstances.

The judgment in this case is best considered, and read, alongside that given by Sir James Munby in M v. P, The Queen's Proctor Intervening [2019] EWFC 14. In particular, the reader is advised to read paragraphs 7-19 of that judgment in full before considering this summary. Those paragraphs explain how several defective divorce petitions, and subsequent grants of decree nisi and absolute, came to the attention of the former President.

Unlike the petition considered in M v. P [2019] EWFC 14, Sir James Munby was here concerned with four petitions, all of which had been brought in breach of s.3(1) MCA 1973. In other words, the petitioner in all four cases had brought the petition less than a 12 months after the date of their marriage.

The Law
The matter of petitions brought in breach of s.3(1) MCA 1973 had been previously considered by Sir Stephen Brown P in Butler v. Butler, The Queen's Proctor Intervening [1990] 1 FLR 114. There it was held that:

(1) 'Where a petition has been issued in breach of section 3, 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 is likewise null and void.

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

(3) The court has no power to grant discretionary relief [7].'

Unlike in M v P [2019] EWFC 14, the question here arose as to whether Sir Stephen's decision in Butler was correctly decided, and so to be properly followed or not [8]. If Butler had been correctly decided, then it would be determinative for the defective petitions before the court in this case [4].

Sir James Munby held that Butler v. Butler [1990] 1 FLR 114 was correctly decided, and that he must follow it [8-10]. He held that:

(1) The judgment in Butler is clear, compellingly articulated, and correct for the reasons given therein;

(2) The conclusion in (1) above is reinforced if one considers the whole jurisprudence in this area, (as analysed by Munby himself in paragraphs 47-103 of M v. P [2019] EWFC 14),

(3) Although Leggatt LJ in Manchanda v. Manchanda [1995] 2 FLR 590 doubted the decision in Batchelor v. Batchelor [1984] FLR 188, he, nor anyone else, has questioned the correctness of the decision in Butler v Butler [1990] 1 FLR 114 [9].

The Petitions
Sir James Munby held that the petitions brought in Campbell-Anderson v. Anderson, Checova v. Ilyas, and Baron v. Baron, had all been brought in breach of s.3 MCA 1973, having been presented less than one year after the marriage. They were all therefore null and void.

In all three cases a new petition had been presented before the Central Family Court. In all three instances Sir James Munby granted Decree Nisi, which had subsequently been made absolute in abridged time under s.1(5) MCA 1973.

Baron v. Baron
In Baron v. Baron, the defective petition had been post-dated, and bore the date one year and one day after the date of the marriage [22]. Once the breach of s.3 MCA 1973 was identified, an order made by DJ Simmonds recorded:

- '…AND UPON the court recording that the Petition issued on 22 June 2015 was issued before the expiry of one year after their marriage and therefore void.

- AND UPON a new petition being issued today.
- …

- The Decree Nisi dated 09.12.2015 and the Decree Absolute dated 23.02.2016 set aside forthwith
- The Petition be re-issued forthwith and service on the Respondent dispensed with.
- The court shall treat the oral application today by the Petition as his application for Decree Nisi and shall proceed forthwith with the Decree Nisi.
- …
- The Decree Nisi is pronounced forthwith. [24]'

Regrettably, these actions were insufficient to remedy the defect in Baron v. Baron. As in fact, there was no 'new petition' and no petition was 'issued' on the date of that order above made by DJ Simmonds [25]. Instead, the original defective petition, dated 22 June 2015, was merely amended to 04.10.2016 at the top of the first page and foot of the last page. Furthermore, the Decree Nisi dated 04.10.2016 bore the same case number as to original defective petition (SO15D06367) [25]. As a result, inspite of the remedial efforts, the defective petition still fell foul to s.3 MCA 1973 and was null and void [28].

Bird v. Bird
In Bird v. Bird, the parties married on 16 January 2015 and the petition of the wife was first issued by the Family Court at Southampton on 13 January 2016 [29].

Unlike in Baron v. Baron, here once the defect in the first petition was identified, a fresh independent petition was sent to the court dated 31 October 2016 [37]. This was received by the court on 03 November 2016, under the cover of a letter dated 02 November 2016 [37]. There was then a mistake by the court office, who failed to properly process the fresh petition. The petition was not then given a new petition number, but instead bore the same number as the original petition; SO16D00440 [34].

The crucial difference in this case, is that a fresh petition was sent to the court, after 12 months had elapsed since the date of marriage. It was an administrative court error that left the new petition with the same case number as the old defective one. Sir James Munby held:

[38] '… In my judgment, the decree nisi and decree absolute which followed [the fresh petition] are not to be treated as nullities; the court's administrative error is no ground for setting them aside; with the consequence that the decree absolute made on 14 November 2016 remains valid and in force.'

Final Observations
Sir James Munby felt that he could not complete his judgment without drawing attention to the 'slapdash approach' which featured in three of these four cases (Campbell-Anderson v Anderson; Baron v. Baron; and Bird v. Bird) [58]. On three occasions, it had been impossible to read the name of the judge of Assistant Justices' Clerk who gave the special procedure certificate due to the written name being illegible [58]. He remarked: 'This is not good enough. Litigants and others have the right to know who it is who makes an order, gives some direction or gives a statutory certificate… on two occasions the Assistant Justices' Clerk was too hard pressed to make the appropriate deletions on the certificate he (or she) was signing. Again, this is simply not good enough. This is an important document which should be completed carefully and properly' [58].

Finally, he observed that whilst introducing Regional Divorce Centres was plainly the right step, it has been marred by the 'failure of HMCTS to provide adequate numbers of both administrative and judicial personnel':

[59] 'It is, unhappily, notorious that some Regional Divorce Units have become bywords for delay and inefficiency, essentially because HMCTS has been unable or unwilling to furnish them with adequate numbers of staff and judges. What is revealed by two of the three cases that were handled by Regional Divorce Units are other failings which I cannot help thinking may have been due, at least in part, to the same underlying problem: people under pressure if there are not enough people engaged to do the work are more prone to make error. The sooner the entire process of divorce is made digital from beginning to end the better.'

Summary by Bethany Hardwick, barrister, St John's Chambers,  Bristol.


You can read the full judgment of Baron & Others (4 Defective Divorces) [2019] EWFC 26 on BAILII