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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> The Lord Chancellor v 79 Divorced Couples [2024] EWHC 3211 (Fam) (19 December 2024) URL: https://www.bailii.org/ew/cases/EWHC/Fam/2024/3211.html Cite as: [2024] EWHC 3211 (Fam), [2025] WLR(D) 25 |
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FAMILY DIVISION: DIVISIONAL COURT
Strand, London, WC2A 2LL |
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B e f o r e :
HER HONOUR LYNN ROBERTS (as a Deputy High Court Judge)
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The Lord Chancellor |
Applicant |
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- and - |
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79 Divorced Couples |
Respondent |
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79 Divorced Couples who were neither present nor represented.
Hearing dates: 30 & 31 October 2024
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Crown Copyright ©
Sir Andrew McFarlane P:
"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".
Void or Voidable: The Legal Context
'When Parliament lays down a statutory requirement for the exercise of legal authority it expects its authority to be obeyed down to the minutest detail. But what courts have to decide in a particular case is the legal consequences of non-compliance on the rights of the subject viewed in the light of a concrete state of facts and a continuing chain of events.'
And
'In such cases, though language like 'mandatory', 'directory', 'void', 'voidable', 'nullity' and so forth may be helpful in argument, it may be misleading in effect if relied on to show that the courts, in deciding the consequences of a defect in the exercise of power, are necessarily bound to fit the facts of a particular case and a developing chain of events into rigid legal categories or to stretch or cramp them on a bed of Procrustes invented by lawyers for the purpose of convenient exposition.'
'The distinction between mandatory and directory provisions, which was much discussed in judicial decisions over many years, has gone out of fashion and been replaced, as Lord Steyn has said, by a different analysis, directed to ascertaining what the legislature intended should happen if the provision in question were not fully observed'.
And
'It has long been appreciated that the essence of the search is the ascertainment of the intention of the legislature about the consequences of failure to observe the requirement contained in the provision in question'.
'When Parliament enjoins something to be done as a step towards some transaction of legal significance, it is frequently questionable what effect failure to comply with the statutory injunction has on the validity of the subsequent transaction'.
And
'It is trite law that it is the duty of the court, in construing a statute, to ascertain and implement the intention of Parliament as expressed therein. Where Parliament has used in non-technical legislation words which, in their ordinary meaning, cover the situation before the court, the court will in general apply them literally, provided no injustice or absurdity results. In such a case it is a reasonable presumption that Parliament or its draftsman has envisaged the actual forensic situation. But in many cases (and the instant seems to be one) it will seem probable that Parliament and the draftsman have not envisaged the actual situation before the court; and the duty of the court in such circumstances will be to surmise, as best it can, what Parliament would, within the context of the words of the statute, have stipulated if it had done so. A number of rules, founded on common sense, have been evolved to assist the courts in this taskfor example, Parliament will be presumed not to intend injustice or absurdity or anomaly. But the most useful approach was laid down as long ago as Heydon's Case (1584) D 3 Co.Rep. 7a. The court will seek to ascertain what was the pre-existing "mischief" (that is to say, defect) which Parliament was endeavouring to remedy, this will often give a guide to what remedy Parliament has provided, and to its extent and its sanction.' [emphasis added]
' to treat the decree absolute as void will rarely promote the interest of the children of the family in question: and in some cases (for example, where a parent has "remarried" in reliance on an ostensibly valid decree absolute) it will actually do harm.'
And
' to hold that non-compliance with section 33 renders the decree absolute void would sometimes cause hardship to innocent third parties: for example, a husband petitioner might without any fault be ignorant of the relevant child's birth; and if he has remarried on the faith of an apparently valid decree absolute his after-taken "wife" and their children might suffer. In my view, Parliament is to be presumed not to have intended such injustice, unless it is the consequence of the only reasonable meaning which suits the scope and object of the statute.'
'[100] That apart, there are, I think, three general conclusions to be drawn from this survey of the jurisprudence:
(i) First, a general lack of appetite to find that the consequence of 'irregularity' I use the word in a loose general sense and not as a term of art is that a decree is void rather than voidable. That is something one finds sometimes stated in terms as by Phillimore LJ in P v P [1971] P 217 at 225, [1971] 1 All ER 616 at 622, by Sir George Baker P in Dryden v Dryden [1973] Fam 217 at 236, [1973] 3 All ER 526 at 539, by Rees J in Wright v Wright [1976] Fam 114 at 124, [1976] 1 All ER 796 at 804, and by Holman J (who, as we have seen, knows a lot about these things) in Krenge v Krenge [1999] 1 FLR 969 at 978 and it is, in truth, implicit in much of the analysis which underpins all these cases. And the language used is typically robust. If Phillimore LJ confined himself to the proposition that a court 'ought not lightly to treat a decree absolute as void', Sir George Baker P, followed by Holman J, said that the court 'should strive to hold that a decree absolute is voidable rather than void', while Rees J said that the court 'should only hold a decree absolute to be void if driven by the terms of the relevant statute so to hold'.
(ii) Secondly, 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 the case.
(iii) Thirdly, 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. This, as Ms Bazley points out, is a general principle extending across matrimonial law and including such matters as the recognition in this jurisdiction of foreign divorces. In addition to the authorities I have already cited, Ms Bazley helpfully referred me to others, including, for example, the dicta of Scott LJ in Meier v Meier [1948] P 89 at 93, [1948] 1 All ER 161 at 162, quoted by Sir Jocelyn Simon P in F v F [1971] P 1 at 13, [1970] 1 All ER 200 at 205; of Sir Jocelyn himself on the same page ('the importance that Parliament attaches to the certainty of the change of status arising out of a decree absolute'); of Hughes J in El Fadl v El Fadl [2000] 1 FLR 175 at 191; of Stephen Wildblood QC in H v H (Queen's Proctor Intervening) (Validity of Japanese Divorce) [2006]EWHC
2989 (Fam), [2007] 1 FLR 1318, [2007] 2 FCR 39 (para [183]); and of Parker J in NP v KRP (Recognition of Foreign Divorce) [2013]
EWHC 694 (Fam), [2014] 2 FLR 1 (para [131]).
[101] Putting the issue in its wider context, Mr Murray helpfully took me to the discussion, in the eighth edition of De Smith's Judicial Review, paras 4058 to 4074, of current thinking about the distinction in public law (that is, public law as the expression would be understood by administrative lawyers, rather than as it might be understood by family lawyers) between acts or decisions which are void and those which are voidable. It is reassuring to see that family lawyers are not the only ones who struggle with the distinction, for the authors observe (para 4058) that 'Behind the simple dichotomy lurk terminological and conceptual problems of excruciating complexity' and go on to cite (para 4070) a dispute within the Academy where the view of one corner is denounced by the other as 'a tissue of pseudo-conceptualism behind which lurks what is in reality a pragmatic conclusion.' Grateful though I am to Mr Murray, it is neither necessary nor appropriate for me to chart these difficult waters, though I note the view of the authors (para 4062) that in the public law context the distinction has been 'eroded' by the courts, which 'have become increasingly impatient with the distinction.'
In noting, as he did in the final sentence of paragraph 101, that, in the public law field, the distinction between void and voidable had become eroded, Sir James was in tune with the analysis that Lord Reed was yet to give in Majera.
'[67] I have set out above the key authorities which have considered the circumstances in which a decree absolute can be set aside. It is clear from these authorities that these circumstances are limited. They are limited because a decree absolute is a declaratory judgment which conclusively determines a person's marital status. In addition to the parties, all public authorities and all other individuals are entitled to rely on the declaratory effect of the decree. This can have significant consequences across a wide range of issues including, for example, the right to marry. To take that example, if a prior decree absolute were set aside, any subsequent marriage would be void under s 11(b) of the 1973 Act.'
And at paragraph 69:
'[69] The authorities make clear that, as stated by Sir Stephen Brown P in Callaghan v Hanson-Fox and Another, a decree absolute is 'unimpeachable where no question arises as to the jurisdiction of the court pronouncing it or as to the procedural regularity which led to it being made'. As set out above, he was plainly referring to the court's jurisdiction to entertain a petition and not the court's power under s 1 of the 1973 Act to grant a decree of divorce. This is consistent with the decision of Bater v Bater and the submissions made by the Queen's Proctor in Callaghan v Hanson-Fox and Another as to the circumstances in which a decree absolute had been held to be either void or voidable, which Sir Stephen Brown P accepted. It is further supported by the decision of Rapisarda v Colladon.'
'45. Leggatt LJ (with whom Thorpe J agreed) articulated the essential distinction, "between cases in which the court lacks jurisdiction because it has no power to grant a decree absolute in the circumstances in which it has purported to do so", in which case the divorce is void; and "cases in which though the court enjoys jurisdiction, it has through the inadvertence of one of the parties failed to observe a statutory provision against the exercise of it, or there has been a procedural irregularity in the process of exercising it" (p.595) [56]. The court concluded that non-compliance with s.9(2) involved the former.
As to the reasoning:
a. The reasoning was limited: "as is shown by Callaghan v Hanson-Fox (Andrew) [1992] Fam 1 in which Sir Stephen Brown P specifically approved Woolfenden" [56]. But this appears to be inaccurate. The sole mention of Woolfenden in Callaghan is (or appears to be) a summary of counsel (amicus curiae's) submissions at pp.526527. It does not appear to be "specifically approved".
b. The use of jurisdiction as the determinant feature of the analysis is inherently very problematic. It narrows the analysis in a way that cannot sit with Soneji and Majera. It is also extremely difficult to see how it could usefully, still less consistently, be applied as a yardstick or even a factor. Its use simply throws up a series of imponderable and unanswerable questions as to when a statutory requirement does and does not have the effect of depriving the court of jurisdiction to take a step in circumstances in which the statutory requirement makes no such mention of the court's jurisdiction. The use of the concept becomes all the more problematic if its use then depends on trying to work out what type or character of jurisdiction is in issue. The sort of distinction drawn by Leggatt LJ, and on which his analysis seemed to turn, is esoteric and unworkable. It does that which Lord Hailsham in London & Clydeside Estates Ltd v Aberdeen DC warned against. It places, as the passage from Lord Hailsham cited in Soneji cautions, particular circumstances "into rigid legal categories or to stretch or cramp them on a bed of Procrustes invented by lawyers for the purposes of convenient exposition", Soneji at §14. That is the opposite of the "more flexible approach" that Soneji mandates, at §15 [66].
c. Both judges mentioned the practical importance of the s.9(2) rule: Leggatt LJ at p.591 [51] and Thorpe J at p.596 [56], describing it as "protection". However, that might be considered simply to justify the statutory requirement, providing limited if any real assistance on the question of the intention to be imputed to Parliament as to the consequences of non-compliance. In any event, even if this reference to protection (and thus its removal in the event of non-compliance) is a form of analysis of the consequences, that analysis is minimal and too narrow in its focus.
d. Whilst Sir Joceyln's decision in F v F and the Court of Appeal's decision in P v P were cited, in neither the judgment of Leggatt LJ or Thorpe J are the relevant principles set out or applied to determine the consequence of non-compliance.
46. Most importantly, the analysis in Manchanda cannot be squared with the correct analysis now identified in Soneji and Majera. The Court of Appeal applied what is now evidently the wrong analytical framework. Moreover, as just noted, they did not consider in their judgments the analysis (broadly reflective as it turned out of Soneji/Majera) in F v F and P v P (despite the latter being Court of Appeal authority).'
'Both counsel referred to a number of cases, which it is right to mention briefly, although I shall do so by category rather than (as counsel did) chronologically. First came eight cases in each of which the order in question was held voidable. The first three are cases in which though the court enjoyed jurisdiction, it inadvertently failed to observe a statutory prohibition against the exercise of it. In F v F [1971] P 1 the decree nisi was made absolute before the court was satisfied as to the arrangements for care and upbringing of one of the children. Sir Jocelyn Simon P held that, because the failure to comply with the relevant statutory provisions rendered the decree absolute voidable and innocent third parties had acquired rights and interests in pursuance of its ostensible validity, it was too late to set it aside. It is to be noted in reaching that conclusion the President relied heavily on McPherson v McPherson (above). Another such case was P v P [1971] P 217 in which it was held that the statutory requirement that a decree shall not be made absolute until the court is satisfied as to the arrangements for the children, although mandatory, is a procedural rule, breach of which would not make the resulting decree absolute void.'
'[Counsel for the Queen's Proctor] has also referred to the case of Nissim v Nissim [1988] Fam. Law 254 which, whilst not dealing with the same situation, provides an example of a defect arising as a result of a breach of a statutory provision. This shows that although it may be looked upon as being highly technical, nevertheless a breach of a statutory provision is fundamental and, unhappily, has the effect of rendering decrees pronounced in apparent good faith null and void.'
'9 In my judgment, Butler v Butler was correctly decided and I must follow it: (i) First, and focusing on Sir Stephen Brown P's judgment itself, it is clear, compellingly articulated and, in my judgment, plainly correct for the reasons Sir Stephen Brown P gave. (ii) Secondly, that conclusion is reinforced if one locates it within the entire jurisprudence as I analysed it in M v P, paras 47103; Sir Stephen Brown P's analysis and conclusions fit very comfortably within the jurisprudence and, in particular, accord with the distinction drawn by Leggatt LJ in Manchanda v Manchanda [1995] 2 FLR 590 in the passage, at p 595, which I quoted in M v P, para 79. (iii) Thirdly, and as I noted in M v P, para 79, "although Leggatt LJ expressed doubt about the decision in Batchelor v Batchelor [1983] 1 WLR 1328, he did not question the correctness of the decision in Butler v Butler". Nor has anyone else.'
Conclusion
i) To hold that non-compliance with s 3(1), even by one day, must automatically lead to the setting aside of a final order of divorce that had been made, without any of the normal elasticity of judicial discretion:
a) would be to impute an intention of a very high order to Parliament which, in cases such as those presently before the court, is wholly disproportionate;
b) would be likely to do damage to the public interest which is in achieving clarity and legal certainty as to the marital status of a citizen following the making of an apparently valid final order of divorce which would have subsequently to be set aside;
ii) In imputing the intention of Parliament, it must be the case that, the more problematic the outcome of holding that a final order of divorce must be void, the less likely it is that Parliament will have intended that outcome. The problems that are likely to ensue, subject to the circumstances of each case, include:
a) A couple, who had believed that they were divorced, finding that they are still married to each other;
b) Any subsequent remarriage would be void and harm may be caused to innocent third parties;
c) The status of children born after the supposed divorce would be in doubt;
d) Financial remedy orders that had been made on divorce, including orders for the sale of the matrimonial home, division of pensions and the distribution of other assets, would be set aside and of no legal consequence;
e) More generally, every divorce is likely to mark a period of unhappiness for the spouses, in some the relationship may have been abusive and harmful. Discovery that the marriage is subsisting may be a cause of trauma to one or both parties.