The Lord Chancellor v 79 Divorced Couples

Where legislation prescribes a time requirement but does not state the consequence of non-compliance, the court must determine Parliament’s intended consequence by considering the provision’s policy and the public and private interests affected. The court should not treat a statutory breach as automatically depriving it of jurisdiction or making a resulting order void. In particular, the one-year restriction in Matrimonial Causes Act 1973, s 3(1), does not mean that a final divorce order made after an application issued one day early is necessarily void. Such an order is voidable. The court must then decide, in the individual case, whether it should be upheld or set aside.

The Lord Chancellor applied under s 55(1)(c) of the Family Law Act 1986 and the inherent jurisdiction for declarations concerning 79 couples whose divorce applications had been issued on the first anniversary of their marriages, one day before the statutory period expired. A validation error in the online divorce system allowed the applications to proceed, and final divorce orders were later made.

The application was heard in the Family Division Divisional Court. The first issue, agreed to be determined separately, was whether the final orders were void or voidable. The second stage would determine whether the orders should be upheld or set aside in the individual cases.

1. Application of the statutory-consequence approach. The court held that, where a statutory requirement is clear but the statute does not specify the consequence of breach, the question is what consequence Parliament intended. The analysis must focus on the policy underlying the provision and the effects on public and private interests. The court applied the approach in Soneji and Majera, which was also reflected in the earlier matrimonial authorities F v F and P v P.
2. Rejection of jurisdiction-based analysis. The court held that attempts to resolve the consequences of statutory non-compliance by categorising the defect as affecting jurisdiction were inconsistent with the flexible approach required by Soneji and Majera. The reasoning in Rapisarda, M v P, Shahzad, Woolfenden and Manchanda was not to be followed to that extent.
3. Application to s 3(1). The one-year restriction in s 3(1) did not demonstrate an intention that an application issued one day early, subsequently processed through administrative error, must inevitably result in a void final divorce order. Automatic invalidity would risk uncertainty about marital status, subsequent marriages, children’s status, financial remedy orders and the position of innocent third parties. The more harmful the consequences of treating the order as void, the less likely that Parliament intended that result.
4. Butler and Baron. The court departed from the approach in Butler and Baron that non-compliance with s 3(1) automatically rendered the resulting orders void. The court did not suggest that the outcome in Baron, which was based on strong policy grounds, was wrong.
5. Disposition. Each of the 79 final divorce orders was held to be voidable rather than void. The respondents were given an opportunity to state whether they wished the court to set aside their individual orders. If none sought that outcome, the court would make the declarations sought by the Lord Chancellor.

Not an appeal. The judgment determined the first stage of an application brought in the High Court under s 55(1)(c) of the Family Law Act 1986 and the inherent jurisdiction.