Breaking up is hard to do: Void and voidable divorces

The pandemic has ushered in a new era of accessible online technology. In the family law sphere, we saw the rise of the citizen’s portal through gov.uk, allowing individuals to file for divorce online. On the whole this technology has been celebrated for its ease of access and, coupled with the change of legislation in 2022, it has largely dispelled the shroud of complex legal terminology that had previously surrounded filings of divorce applications. Divorce has never been easier…

However, with ease of access comes a confluence of possible errors and unsuspecting individuals may now find themselves falling into a void. This article reflects on the importance of solicitor advice before submitting an online divorce application in order to ensure a divorce is effective and cannot be rendered null and void.

Jurisdiction to entertain a divorce application

The Court has jurisdiction to entertain a divorce application if the following criteria is met:

1. Parties have been married for one year (s.3 MCA 1973)
2. The Court of England and Wales have jurisdiction as one or more of the following criteria applies (s.5 DMPA 1973, as amended by the DDSA 2020)
   1. Both spouses are habitually resident in England and Wales
   2. Both were last habitually resident in England and Wales and one of them continues to reside there
   3. The Respondent is habitually resident in England and Wales
   4. On a joint application, either spouse is habitually resident in England and Wales
   5. The applicant is habitually resident in England and Wales and has resided there for at least one year immediately before the application was made
   6. The applicant is domiciled and habitually resident in England and Wales and has resided there for at least 6 months immediately prior to the application
   7. Both parties are domiciled in England and Wales
   8. Either party is domiciled in England and Wales (it is worth noting that same sex married couples and civil partnerships cannot cite this jurisdictional ground, but they have the benefit of residual jurisdictional grounds, including: domicile for either party on the date the proceedings began at Court, or that the parties married/became civil partners under the law of England and Wales and it is in the interests of justice for the Courts to assume jurisdiction)

In new-style divorce applications, the above criteria present themselves as boxes ready to be ticked to show the court has jurisdiction.

There are two key terms in the above jurisdictional criteria that often cause confusion and mistake:

Habitually resident

The main test for habitual residence is to establish where a person has their “centre of interests” (Explanatory Report on Brussels II – it is worth, at this stage, noting that England continues to apply EU case law on the test of habitual residence even post-Brexit).

In considering this test, the Court will consider a variety of non-exhaustive factors, including where a person has property, where they work, where children go to school, where tax is paid, where their mail is sent, etc).

Domicile

There are three types of domicile (only one can be operative at any given time):

• Domicile of Origin: This is a person’s domicile at birth (if a person’s parents were married when they were born, then this is their father’s domicile; whereas, if unmarried, this is reflective of their mother’s domicile)
• Domicile of Dependence: This is only relevant for children, or women who married before 1 January 1974 – in the case of the latter, women would acquire husband’s domicile on marriage, replacing their domicile of origin
• Domicile of Choice: This will displace a person’s domicile of origin and requires residence in a country other than the domicile of origin, as well as an intention to remain in the country permanently or indefinitely (both elements must be present Bell v Kennedy (1868)). Therefore, this domicile is abandoned if cease to reside in that country permanently and they cease to intend to reside there permanently

In considering whether a person has the intention to remain in the country permanently, the court will consider similar criteria to that listed above for habitual residence.

Regarding working abroad (which commonly presents issues), in Kelly v Pyres, the Court of Appeal confirmed England can be relied upon under domicile of choice provided a person can show they are living in England but working abroad, and that England is their ultimate home.

Risks – The Void and Voidable trap

The cracks are already beginning to show: Without legal advice, which will be increasingly common with the new-style application process, a lot of people are going to incorrectly align their domicile or habitual residence with England or will ‘tick’ the wrong box because the terminology is not straightforward.

Before the change in legislation in 2022, Sir James Munby (then President of the Family Division of the High Court), heard the case of M v P (Queens Proctor intervening) [2019] EWFC 14 regarding the validity of incorrectly completed divorce petitions.

In this case, Decree Absolute was pronounced on 24 February 2014 enabling both parties to subsequently remarry (which they then did so). However, years later in 2016, errors were discovered in the original divorce petition around the fact of two years’ separation, upon which the ground that the marriage had irretrievably broken down was proven. The husband, who was the petitioner, had incorrectly calculated that two years had passed since the date of separation when citing the fact of two years’ separation (in fact, he was about 2 months short of successfully claiming this fact). His wife acknowledged the petition without noticing this error and, remarkably, the court further approved the petition. The petition was amended to be based on behaviour in 2017. However, the question was whether the 2014 Decree Absolute remained valid, or if it should be null and void. If it were found to be void, then both parties would have committed bigamy upon remarriage.

The Court was invited to consider the case law existing to date, mainly comprising of Butler v Butler (Queen’s Proctor intervening) [1991] FLR 114 and which held that any decrees based on a petition presented to the Court before one year had passed since the marriage date were null and void.

However, Munby noted that the facts of this case were distinct to Butler where the Court did not have ‘jurisdiction to entertain the petition’; the question in M v P was more whether the Court had ‘jurisdiction to grant a decree’ (para 87, distinction also drawn in para 7 of Rapisarda v Colladon (Irregular Divorces) (2014) EWFC 35).

Of the view that the Court would ‘lean against holding the decrees void unless driven to that conclusion by the language of the relevant statute’ (para 103), Munby held that the decrees were voidable. In this way, the Court could in its discretion decide not to set the decrees aside and that the decree could simply be amended through the Court’s powers under FPR 2010, rule 4.1(6).

This brings us to the question: If a mistake was made on the basis that the wrong jurisdictional box was ticked, would this be void ab initio pursuant to Butler.

Certainly, such a divorce application would be void were there no other jurisdictional criteria that could be satisfied to enable the Court to entertain the divorce application, whether by mistake (applying the principle in Butler) or fraud. In Rapisarda v Colladon (Irregular Divorces) (2014) EWFC 35 parties had fraudulently claimed jurisdiction on the basis of habitual residence in England based on an address in England that was merely a mail box. In this case, on the basis of fraud, all 180 decrees were set aside.

However, under the M v P reasoning, what if there was a simple mistake and another box could have been correctly ticked to show the court has jurisdiction then the divorce application? It would seem that such an application could be considered voidable, not null and void ab initio.

Now that facts have disappeared, this should hopefully minimise the opportunity for errors of the M v P nature occurring. However, given the increasing number of litigants in person completing divorce applications online and freely ticking the jurisdictional criteria without further explanation or evidence, the concern remains that many divorce applications will not have been correctly filled out. We therefore may see an increasing number of cases picking up on the question in M v P “Is this a ‘voidable’ divorce?”