Digital divorce mishap

The Lord Chancellor v 79 Divorced Couples [2024] EWHC 3211 (Fam)

HMCTS began the process of digitising divorce applications back in 2017, with an integration to an online divorce portal.  In April 2022 the Divorce, Dissolution and Separation Act 2020 came into force, with all divorces to be managed digitally, and the much awaited ‘no fault divorce’ was finally in place.  

The change to ‘no fault divorce’ was significant, changing much of the legislation which had been in place since 1973, taking away the need for divorcing parties to put to paper the reasons for the failure of their marriage.  The hope was that the process would be streamlined and far more amicable. Whilst the terminology changed, and the requirement to assign fault was changed, much of the steps in the new Act replicated the existing 1973 Act.  

Section 3 of the Matrimonial Causes Act 1973 set out that ‘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.’

It was an accepted part of law that the period of one year in this context meant one year and a day.  

Between 6th April 2022 and November 2022, there were 79 Applicants who had submitted their applications on the anniversary of their marriage.  They were technically a day early.  The new divorce portal should have prevented such an error, but it erroneously accepted them.  

This was problematic.  At least 11 couples had remarried, others were planning to remarry.  19 had commenced financial orders cases and 17 had finalised financial orders via the court.  

The legal question was what was the status of these divorces?  Were they void as case-law would suggest.  This would have ramifications for those who remarried, concluded financial proceedings, and put into effect property transfers, tax or inheritance arrangements as well as immigration status issues and the status of any children born since.  

The President had issued guidance in 2019 (29 July 2019 President’s Guidance: Defective Divorce Petitions / Decrees) which stated that where a petition had been issued in breach of s3, it would be null and void and the court had no jurisdiction to entertain it.  Any decree nisi or absolute would be null and void.  It also stated the court had no discretion to amend the petition.   Any remarriage of the parties would also be invalid.  

The Lord Chancellor applied with the 158 respondents under s55(1)(c) of the Family Law Act 1986 and the inherent jurisdiction to make declarations that on the date of the final orders of their individual divorces, that their marriages no longer existed. The point to be considered was, were the divorces void or voidable?  Was there a judicial discretion which could be applied?

The court set out in detail the significant difficulties presented by the existing case-law

Sir Andrew McFarlane said: ‘It is inconceivable that parliament would have intended that the consequences of submitting an application for divorce one day early, which, by administrative/computer error was processed through to a final order of divorce being granted, would be that that final order must automatically be set aside as void and having no legal standing.’

The court found that the 79 divorces case were voidable but not void.  The 158 respondents were given until the end of January 2025 to set out in evidence whether they wished the court to determine that their final divorce order should be voided.  If no respondent made that argument, the declarations sought by the Lord Chancellor would be made.  Directions would be made in any cases where evidence was submitted.  

In an increasingly digital world, this case highlights the importance of attention to detail in new software/systems, they are only as reliable as the information programmed into them.  The ramifications from one small oversight could be wide-ranging.

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