Be Careful If you Do Your Own Divorce
Updated: Apr 9, 2019
The case of the case of M v P which was heard in the High Court in London in February 2019, is a salutary reminder of the risks of DIY divorce.
M was married to P (we are not told their real names) in September 2011. The marriage did not last, and by June 2013 they had agreed to divorce. M presented a divorce petition, which he drafted himself in the Willesden County Court.
But he made a simple mistake - he ticked the wrong box which is easy to do. P agreed to the divorce, so she did not see a solicitor, she just filled in the acknowledgement of service form, and sent it back to the court office. No one in the court spotted the mistake, so the divorce went through, and eventually they got their decree absolute in February 2014. They both moved on with their lives. M married another woman, a Brazilian with whom he has a child, and P married someone else, also in Brazil.
The mistake got picked up years later when data was being transferred from the Court Service to the Office for National Statistics who prepare and maintain the statistics about divorce, which you will often read about. This particular divorce stood out, because the dates did not stack up.
Eventually the case was referred to the Queen’s Proctor, which is an old judicial office. His or her function historically was to intervene where there was an irregularity in divorce, and particularly to ensure that unhappy couples did not collude to obtain a divorce where one should not be granted. We don’t hear much from the Queen’s Proctor these days and the role is now part of the responsibility of the Treasury Solicitor.
But the Queen’s Proctor decided that this divorce should be set aside, and applied to the court for a direction that it be declared a “nullity”. The case came before Sir James Munby, sitting as a High Court Judge in London. Sir James is well known amongst family lawyers for writing judgments which include a thorough review and assessment of the law surrounding the particular case he is dealing with. As a result they are not an easy read, but if you want completely up-to-date and better-than-textbook explanation of a particular area of law, you need look no further than Sir James’s latest judgment on the topic. This one runs to 36 pages, of closely argued legal theory. The whole case hinged, in the end, and whether the mistake in the divorce petition made the divorce “voidable” in which case the problem could be repaired, or whether it was “void” in which case it could not be repaired and M and P are still married to each other, with all the complications which would follow from that.
It must have come as a huge relief to both of them that Sir James decided their divorce was voidable, and went ahead and fixed the problem for them.
But all of this had a massive effect on M and P and their respective families. The law report tells us that the uncertainty had driven P, in particular, to the verge of a nervous breakdown. If the case had gone the other way her marriage to her second husband would have been bigamous, which is a serious criminal offence in Brazil. Bigamy is also a serious criminal offence in this country, but it is unlikely that she would have been prosecuted by the UK authorities in these circumstances. And her second husband’s immigration status would have been lost, with disastrous consequences.
The fact is that marital status affects all kinds of things, including pension entitlement and inheritance.
It was said on behalf of M and P that people who receive a decree of divorce from the court office should be entitled to rely on it, and order their lives accordingly. That’s right in theory but, like so many things in life the reality is different.
So, whilst one can’t but feel a great deal of sympathy for M and P and the trauma they have been through, their story is another reminder that, a few hundred pounds worth of solicitors’ fees saved at the beginning can cause a whole load of trouble and heartache.
John Pratley is an expert divorce lawyer, who has more than 25 years experience advising clients purely about divorce and related family law issues, such as the financial consequences of separating and divorcing. After establishing the first niche family law practice in Bristol, and going on to senior management roles in a national firm, John set up Apple Tree Family Law in 2018. Apple tree family Law solicitors specialise in advice about divorce and financial issues.
We are based in Bristol and Exeter, but we have clients all over the UK and further afield. We offer, simply, clear and accurate advice about divorce and family law issues, and the very best client service, for a clear and reasonable price.