In a rather uniquely titled case, Lord Chancellor v 79 Divorced Couples [2024] EWHC 3211 (Fam), the High Court of England was faced with an application by the Lord Chancellor for a declaration that on the respective dates when the final divorce orders in each couple’s case were granted, the marriage did not subsist.
The background to the case is that under the Matrimonial Causes Act, 1973 a party seeking a divorce may not apply for a divorce order before the expiry of one year. This has always been understood to mean one year and a day.
Following the enactment of the Divorce, Dissolution and Separation Act 2020, applications for divorce are made digitally. A glitch in the computer system of His Majesty’s Courts and Tribunals Service (HMCTS) allowed couples seeking divorce to apply for divorce orders a day early. 79 couples sought divorce orders which were granted a day earlier than the law allowed. A number of the affected parties had gone on to remarry or were involved in consequential matrimonial property proceedings following the divorce.
Upon discovery of the computer error, the Lord Chancellor applied for orders under s55 (1)(c) of the Family Law Act 1986 that the 79 marriages so dissolved did not subsist. The divorce orders were granted contrary to the intention of Parliament, that divorce orders could not be sought before a year.
The Court allowed the Lord Chancellor’s application, holding that the divorce orders granted were voidable, rather than void. The Court held that it was inconceivable that Parliament’s intention would have been to void the divorce orders in the circumstances that the Court faced. The consequence of an order declaring the divorce orders void would have been absurd: parties who believed that they were divorced, some of whom had even gone on to marry other persons, would still be deemed married in the eyes of the law.
