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M v P [2019] EWFC 14 (22 March 2019)

Judgment of Sir James Munby (Sitting as a Judge of the High Court) in a case concerning an application by the Queen’s Proctor to set aside a decree nisi of divorce granted in the Willesden County Court in 2013.

The decree was made absolute on 24th February 2014. Both M (the husband) and P (the wife) then went on to re-marry relying on the validity of their decrees. Some two years later, clerical and judicial errors were discovered that brought into question the validity of the judicial process by which the divorce had been granted. The Queen's Proctor subsequently asserted that both decrees were void - nullities – by reason of non-compliance with section 1(2)(d) of the Matrimonial Causes Act 1973. The matter came before Sir James Munby for determination on 22nd March 2019.     

The parties married on 19th September 2011and separated almost immediately afterwards. M's petition relied on the ground of irretrievable breakdown of the marriage, on the factual basis that the parties had lived apart for two years following the breakdown of the marriage. In fact, the petition was issued on 26 July 2013 some two months before the 2-year period had elapsed. This irregularity was not picked up at any stage by either the clerical staff or the two District Judges who dealt with the matter prior to the decree absolute being pronounced. The irregularity was eventually noticed on 12 October 2016, apparently during a routine review process, and the parties were contacted as a matter of urgency. A hearing took place before a District Judge on 18 January 2017 at which the petition was amended to rely on P's 'behaviour' as the factual basis of the marital breakdown and an order made determining that the February 2014 decrees remained valid, as did M's subsequent marriage to a Brazilian national. The matter was referred, with others, to the Queen's Proctor and subsequently to Sir James Munby.

The Queen's Proctor relied upon the case of Butler v Butler (Queen's Proctor intervening) [1991] FLR 114 in which the court had found that, pursuant to s.3 MCA 1973, by operation of statute, a petition presented before the expiration of one year from the date of the marriage was null and void, and a court had not jurisdiction to entertain it.

The Queen's Proctor submitted that there was no reason for distinguishing the instant case from Butler, notwithstanding that it concerned section 1(2)(d) of MCA 1973 rather than section 3, arguing that the divorce petition in this case was also non-compliant with statute because the parties had not met the essential requirement of living apart for a continuous period of at least two years immediately preceding the presentation of the petition. It followed, therefore, that the petition was contrary to the statutory scheme, the court had no jurisdiction to grant either decree nisi or decree absolute and accordingly both decrees were null and void.

Leading Counsel representing P (pro bono), argued that this case could be distinguished from those cases where the defect went to the lack of jurisdiction of the court as:

i. With respect to petitions pursuant to s.1(2)(d), the court did have jurisdiction to receive the petition, which contained the essential assertion that "..that the marriage has broken down irretrievably" and therefore to grant the decree on that ground. The error in correctly identifying the relevant "fact" to evidence the breakdown of the marriage did not go to jurisdiction and made the decrees voidable rather than void;

ii. Further, that unreasonable behaviour on the part of the respondent, another fact to support the ground of irretrievable breakdown of the marriage, existed at the date of the original petition and the relevant evidence to support that fact was actually set out in Part 6 of the petition. Thus the defect in the petition was curable by the petitioner simply putting a cross in the correct box in Part 5. In these circumstances, the decrees were voidable, rather than void.

Void or Voidable?
After making an extensive review of the jurisprudence in this area, including with respect to circumstances where the court either did or did not have jurisdiction to entertain a petition, Sir James Munby identified the central issue as being whether the decrees were a nullity and accordingly void, or merely voidable.

He drew three general conclusions:

i. A general lack of appetite in the case law to find that the consequences of 'irregularity' is that a decree is void rather than voidable;

ii. A general recognition that only if the decree is held to be voidable, and not void, will the court be able to do justice to all those whose interests are affected and having regard to the particular circumstances of each case; and

iii. Recognition of the public interest, where matters of personal status are concerned, in not disturbing the apparent status quo flowing from the decree and the certainty which normally attaches to it.

The court then considered the effect on M and P, coming to the clear conclusion that the decrees obtained by them, whilst subject to "irregularities" were voidable, not void. That decision was within the court's discretion. The rationale is set out in the following 11 points:

1. That there is no previous case directly in point. The case turns on the statutory provisions linguistically different from those in previous leading cases such as Butler and Manchanda v Manchanda [1995]2 FLR 590;

2. The court would lean against holding the decrees void unless driven to that conclusion by the language of the relevant statute;

3. The court needed to ask itself whether Parliament could really have intended that the consequences here should be that the decrees are a nullity and void. Given the impact and injustice of taking that course on M and P and their new spouses, particularly in Brazil where bigamy is a very serious matter, he did not think so;

4. Non-compliance with the statute is not in itself determinative;

5. Both the relevant statute itself and case law indicated that the consequence of non-compliance with the statute is not that the decree is void but rather that it is voidable;

6. Both the statutory context and the structure and language of section 1(2) MCA 1973 are markedly different from the context, structure and language of section 9(2) MCA 1973;

7. Unlike the situation in Butler, the court did have jurisdiction to entertain the petition as it was clear that there was no non-compliance with section 3;

8. The petition correctly pleaded the only relevant ground, namely that "the marriage had broken down irretrievably";

9. The error in correctly identifying the relevant fact did not prevent the court entertaining the petitioner's subsequent application for a decree. The District Judge's error was an inadvertent failure to observe a statutory provision – section 1(2) on MCA 1973 – against the exercise of it;

10. There was another fact in existence at the date of the petition which if properly pleaded – by an amendment of the petition- would undoubtedly have justified the court granting a decree nisi and thereafter making the decree absolute;

11. In the present case the evidence to establish that fact was actually set out in Part 6 of the petition, the defect being that the cross had been put in the wrong box – a defect that was simply curable by putting the cross in the correct box. The court "had to ask what conceivable principle of justice or public policy could possibly be served by treating as nullities decrees where the parties were the innocent victims of failures by the court itself, entered into in complete good faith and in reliance upon the court's own orders…".

1. The decree nisi and the decree absolute are voidable, not void;

2. Neither decree would be set aside – ie the decree absolute remained valid and in force;

3. The decree nisi should be varied in accordance with FPR 2010 rule 4.1(6) with effect from 18 January 2017.

1. The order of 28 February 2019 pursuant to section 1(4) of the Judicial Proceedings (regulation of Reports) Act 1926 permitting unrestricted reporting of the proceedings, save that M and P should not be identified, to be continued indefinitely.

2. The situation where the wife (P) had been unable to obtain LAA funding for representation in this complex matter was both unprincipled and unconscionable, particularly where the matter was brought to court due to the mistakes of the State, the court system and specifically by judges.

3. This was not a situation where correction by way of 'the slip rule' would be appropriate.

Summary by Dianne Martin, barrister, St John's Chambers, Bristol.

For the full judgment click here