It is always nice to see a judgment from Sir James Munby, and this one has everything, including the title above, which I intend to steal and deploy at every available opportunity.
(The fact that the phrase was originally coined by an American Judge whose given name was “Frankfurter” makes me even fonder of it, as does the fact that the case it was taken from is one where the US Court ruled that the historical rule that a husband and wife could not conspire to commit a criminal act was nonsense based on medieval views of women being the property of their husband United States v Dege 1960 http://www.worldlii.org/us/cases/federal/USSC/1960/136.html
Such an immunity to husband and wife as a pair of conspirators would have to attribute to Congress one of two assumptions: either that responsibility of husband and wife for joint participation in a criminal enterprise would make for marital disharmony, or that a wife must be presumed to act under the coercive influence of her husband and, therefore, cannot be a willing participant. The former assumption is unnourished by sense; the latter implies a view of American womanhood offensive to the ethos of our society. )
What is the case about?
In a nutshell, some people got divorced on the grounds of 2 years separation when they hadn’t been separated for 2 years (in one of the cases, they’d only been married for 22 months, so couldn’t possibly have been separated for 2 years). The Court wrongly granted the divorces. The problem got flagged up by Court software after the event [apparently showing that 11 divorces were made in 2016 that shouldn’t have been granted], the Court fudged the mistake by making orders it didn’t have power to make. The people then remarried, making them inadvertently bigamists, Sir James Munby learned of the Court software throwing up divorces that had been wrongly made and looked into it, the Legal Aid Agency said (I’m paraphrasing) “Just because the State cocked up your divorce, and now says you’re not divorced, or might not be, and you might be a bigamist or might not be, and your new husband might be deported by the immigration authorities if your second marriage isn’t lawful, and you need to be in a Court hearing to argue about that involving really complex case law going back to 1936, the case law being so complicated that it made a former President of the Family Division (but not Sir James Munby) say with exasperation “I find it impossible to discover any clear and logical principle from the decided cases.” , well all of that doesn’t mean that you get legal aid to help put this right. You are £37.17 a month over the limit for legal aid. Do it yourself. Good luck, pal. ”
THAT is what caused Sir James Munby to say
- I do not criticise the Legal Aid Agency which was, no doubt, operating within the confines of a system imposed on it by others. But the idea that someone with an available net monthly income of £625.87 (the amount if one takes the actual rather than the notional amount of her rent: £1,580.87 – (1,500 – 545) = £625.87) and, for all practical purposes, no capital has the means to fund litigation of this kind is, to adopt a phrase used by Frankfurter J in United States v Dege (1960) 364 US 51, page 53, “unnourished by sense.” Nor is it immediately obvious why someone whose disposable income is so low should be denied legal aid because their aggregate income exceeds some artificial limit, let alone when it does so by a sum as trivial as £37.17. After all, P, like all of us, has to live on what is left after payment of PAYE and NI (deducted, of course, at source) and the costs of housing.
- What ought also to be obvious to anyone with an ounce of common sense and understanding of forensic realities is that no lay person in the position of either P, or for that matter M, could possibly be expected to argue a case of this legal complexity, and this even if English was their native tongue.
- What I was faced with here was the profoundly disturbing fact that P does not qualify for legal aid but manifestly lacks the financial resources to pay for legal representation in circumstances where, to speak plainly, it was unthinkable that she should have to face the Queen’s Proctor’s application without proper representation. The State has simply washed its hands of the problem, leaving the solution to the problem which the State itself has created to the goodwill, the charity, of the legal profession. For what brought this matter to court was, to repeat, failures, mistakes, by the State, by the court system, and, specifically by judges. Moreover, the application has been mounted by an officer of the State, the Queen’s Proctor. Yet the State has declined all responsibility for ensuring that P is able to participate effectively in the proceedings. I make as clear as possible that in saying this I intend not the slightest criticism of the Queen’s Proctor, who has acted throughout with complete propriety and, moreover, with conspicuous concern for the predicament in which P and M find themselves. Indeed, the Queen’s Proctor, having discussed the point with the court, very properly took the highly unusual step of writing to Messrs Duncan Lewis a letter to assist with P’s application for legal aid in this case. Yet the situation is, it might be thought, both unprincipled and unconscionable. Why should the State leave it to private individuals to ensure that hapless individuals like P and M, victims of the State’s failings, are able to obtain justice? Or is society in the twenty-first century content with the thought, excoriated well over a century ago by Matthew LJ, that justice, like the Ritz, is open to all? It is deeply wrong and potentially most unfair that legal representation in a case like this, where it is a vital necessity, is available only if the lawyers, as here, agree to work for nothing.
121.The ultimate safeguard for someone faced with the might of the State remains today, as traditionally, the fearless advocate bringing to bear in the sole interests of the lay client all the advocate’s skill, experience, expertise, dedication, tenacity and commitment. So the role of specialist family counsel, and of the specialist family solicitors who instruct them, is vital in ensuring that justice is done and that so far as possible miscarriages of justice are prevented. May there never be wanting an adequate supply of skilled and determined lawyers, barristers and solicitors, willing and able to undertake this vitally important work. There can be no higher call on the honour of the Bar than when one of its members is asked to act on behalf of a client facing the might of the State. The Bar, I am sure, will never fail in its obligation to stand between Crown and subject. And the same of course goes for the solicitors’ profession. But there is something profoundly distasteful when society, when Government, relies upon this as an excuse for doing nothing, trusting to the professions to do the right thing which the State is so conspicuously unwilling to do or to provide for.
The lawyers in this case worked for free to represent people caught up in a life-altering piece of litigation because the State cocked up.
I also like that the Daily Telegraph headlined this story in their indupitable way
126.During the hearing on 28 February 2019, I mentioned the fact that I had discovered certain problems with an early version of the software. This, I should emphasise, was well before it was first made available to the public. The fact that I, as an elderly judge, had been able to identify such gremlins seemed to surprise the media: a report of the hearing in the Daily Telegraph of 1 March 2019 carried the headline “Online divorce service glitch revealed by senior judge, 70“, faithfully reflecting the story beneath.
You may be thinking at this point that blaming it on software is easy but decree nisi and decree absolute are actually made by Judges and surely even busy Judges could look at a marriage that was 22 months ago and see that it couldn’t possibly be a 2 year separation case. You are right. Ultimately the mistakes were made by Judges. (There were 11 such cases in 2016, this is a sample one)
- The parties were married in London on 19 September 2011. In June 2013, the husband, M, acting in person, submitted a divorce petition dated 14 June 2013 to the Willesden County Court. It was returned to M on three occasions before the Court was prepared to accept it: first, on 18 June 2013 because the front page needed to be completed and because of deficiencies in Parts 2 and 4; then on 27 June 2013 because the deficiency in Part 2 had still not been remedied; and finally on 3 July 2013 because with effect from 1 July 2013 the issue fee had increased from £340 to £410. It is to be noted that through all this to-ing and fro-ing no-one in the court office had spotted the fundamental problem with the petition. After these delays, the petition was issued on 26 July 2013.
- In Part 3, “Jurisdiction”, M asserted jurisdiction in accordance with the Council Regulation, stating that he and his wife, P, were both habitually resident in England and Wales. Part 5, “The fact(s)”, follows the structure of section 1 of the Matrimonial Causes Act 1973 and requires the petitioner to mark the relevant boxes. M put a cross in two boxes, one against the rubric “I apply for a divorce on the ground that the marriage had broken down irretrievably”, the other against the rubric “The parties to the marriage/civil partnership have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the Respondent consents to a decree/order being granted.” In Part 6, “Statement of case”, M wrote: “The respondent has refused to share the same household as the petitioner since the marriage took place on the 19th September 2011.”
- The problem which has given rise to the present proceedings is immediately apparent: given that the marriage had taken place on 19 September 2011, the period of two years referred to in section 1(2)(d) of the 1973 Act had not elapsed by the date the petition was issued on 26 July 2013. Unhappily, even at this stage the problem was not identified by the staff at Willesden County Court, notwithstanding that the Automatic Event Record generated in the court office and dated 29 July 2013, accurately recorded under the heading Case Details that the Grounds for Divorce (sic) were “2yrs separation”, that the date of marriage was 19 September 2011 and that the date of issue was 26 July 2013.
- In her acknowledgment of service dated 12 August 2013, P, in answer to question 1C (“Do you agree with the statement of the petitioner as to the grounds of jurisdiction set out in the petition? If not, please state the grounds on which you disagree with the statement of the petitioner.”), answered “I agree with the statement of the petitioner.” In answer to question 4 she stated that she did not intend to defend the case and in answer to question 5 that she consented to a decree being granted. M’s “Statement in support of divorce … – 2 years, consent” was dated 27 September 2013.
- On 22 October 2013 the file was put before Deputy District Judge Quin. The Deputy District Judge completed the Form D30 (“Consideration of applications for Decree Nisi / Conditional order under FPR 7.20”), by ticking the relevant boxes and making the appropriate deletions so as to say “I certify that the Petitioner is entitled to a decree of divorce on the following ground(s): 2 years separation by consent.”
- On 21 November 2013, decree nisi was pronounced by District Judge Steel, the order stating, so far as material for present purposes: “The Judge held that the petitioner and respondent have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition, and that the respondent consents to a decree being granted …” The decree was made absolute on 24 February 2014.
- On 26 January 2015, M remarried in Brazil, his new wife being a Brazilian national.
- On 12 October 2016, a member of the HMCTS Family Improvement Team at HMCTS headquarters emailed the delivery manager at what was now the Family Court at Willesden seeking “urgent information from a divorce file where the petition should not have been issued.” The delivery manager referred the matter to District Judge Middleton-Roy the same day, with this note:
“It would appear that this petition was issued in error. It was issued under 2 yrs with consent but the parties were only married for 22 months. Directions/ comments please. DA has already been issued 24/2/14.”
District Judge Middleton-Roy responded the same day. He ticked the “No action necessary” box on the referral form and commented: “I am not clear why the issue has arisen now – neither party appears to be applying to set aside the DA.”
- The next morning, 13 October 2016, the delivery manager emailed the HMCTS Family Improvement Team to report District Judge Middleton-Roy’s comment. The response from the Family Improvement Team was an email to the delivery manager the same morning:
“The issue has been raised as our data checking process returns has picked this case up as a case that should not have been issued, thereby possibly making the DA invalid. Can this be re-referred down to a judge for consideration of directions to be given in view of this …”
The delivery manager put the file back before District Judge Middleton-Roy the same day. On 17 October 2016 he directed that the matter be listed for directions with a time estimate of 30 minutes and instructed the court staff write to both parties as follows:
“The Judge has considered that papers and directs that I write to you as follows: An error has been identified in the process giving rise to the Decree Absolute (final divorce) in these proceedings in 2014. The matter has been listed for a directions hearing when the court will identify what steps are necessary to restore the issue.”
Letters in those terms were sent to both parties on 19 October 2016, enclosing notices, dated 17 October 2016, listing the directions hearing for 18 January 2017.
- The hearing on 18 January 2017 took place before District Judge Middleton-Roy. M was present in person; P did not attend the hearing. The order made by District Judge Middleton-Roy “RECORDED” certain matters, including that “This hearing was listed of the Court’s own motion and not on the application of either party”; that “The Court was informed that subsequent to the granting of the Decree Absolute in this action, the Petitioner has re-married”; that “The Court determined that the original petition … proceeded erroneously by not relying upon the correct facts in support, namely two years separation, when the parties had not been separated for a full period of two years at the time of presenting the petition”; that “The Court determined that the Petitioner shall be permitted to amend the petition, to rely upon the fact of the Respondent’s behaviour”; and that “The court dispensed with the need for a formal written application to amend the petition and dispensed with the need for notice to be served upon the Respondent, the petition having proceeded on an undefended basis and no answer having been filed.” The order also “RECORDED” that:
“The Court determined, declared and certified that the Petitioner is entitled to a decree and that the Decree Nisi dated 21.11.13 and Decree Absolute pronounced in public on 24.02.14 remain valid”
“The Court declared that nothing in the terms of this Order has the effect of invalidating the Petitioner’s subsequent marriage.”
- The order further ordered (“It is ordered that”) that:
“2.1 Permission to the Petitioner to amend the petition dated 14.06.2013 in the form of the amendment dated 18.02.2017.
2.2 Filing and service of an application to amend the petition is dispensed with.
2.3 The Decree Absolute pronounced on 24.04.2014 remains valid.”
- The court file contains a copy of the petition marked at the top of the first page, in what appears to be District Judge Middleton-Roy’s handwriting, “AMENDED” and at the foot of the final page “18.01.2017”, again in what appears to be his handwriting, although it appears that M also re-signed the petition. In Part 5 the cross against the rubric “The parties to the marriage/civil partnership have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the Respondent consents to a decree/order being granted” has been deleted and, in its place, a cross inserted against the rubric, which was underlined, “The Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent.”
- On 24 March 2017, in Brazil, P married a Brazilian national.
The legal argument (and it is complex) hinged on whether the decree absolutes, which were made on an incorrect premise (that the parties had been separated for 2 years when it was apparent on the face of the documents that they had not been) were VOID – which means the divorce didn’t happen and the subsequent remarriages of both parties were unlawful or VOIDABLE meaning that a Court could decide whether to void them or whether to leave the divorces legally intact.
The conclusion (and if you want to see how Sir James Munby got there good luck to you, its at paragraphs 45-103 inclusive) is
40.At the end of the hearing I reserved judgment. On 4 March 2019 I informed the parties of my decision: that the decrees are VOIDABLE, not void; that the decrees will NOT be set aside; and that the decree absolute accordingly remains valid and in force. I now (22 March 2019) hand down judgment.
- At the end of this long analysis of the jurisprudence, I have come to the clear conclusion that the consequence of what happened in this case is that the decrees are voidable, not void.
- I can set out my reasoning as follows, taking the points in no particular order:
- i) First, there is no previous case directly in point. The present case turns on statutory provisions linguistically and analytically different from those in play both in Butler v Butler, The Queen’s Proctor Intervening  1 FLR 114, and in Manchanda v Manchanda  2 FLR 590.
- ii) Secondly, I should lean against holding the decrees void unless driven to that conclusion by the language and context of the relevant statute, here section 1(2) of the Matrimonial Causes Act 1973.
iii) Thirdly, and applying the approach articulated by Sir Jocelyn Simon P in F v F  P 1, I need to ask myself whether Parliament can really have intended that the consequence here should be that the decrees are nullities and void. My answer is that Parliament surely cannot have intended the injustice which will inevitably flow, not just to M and P but also to their new spouses, if the decrees are void.
- iv) Fourthly, and as I have already explained, the fact that there has been non-compliance with the statute is not determinative.
- v) Fifthly, although recognising that the statutory context is different, the fact is that the structure of section 1(2) of the Matrimonial Causes Act 1973 – “the court … shall not … unless the petitioner satisfies the court” – is indistinguishable from that in both section 33(1) of the Matrimonial Causes Act 1965 and section 6 of the Divorce Reform Act 1969 (now section 10 of the 1973 Act) – “the court shall not … unless it is satisfied” – and the case-law is all at one that in those cases the consequence of non-compliance is not that the decree is void but rather that it is voidable.
- vi) Sixthly, both the statutory context and the structure and language of section 1(2) of the 1973 Act are markedly different from the context, structure and language of section 9(2).
vii) Seventhly, it is quite clear that there was here no non-compliance with section 3 of the 1973 Act, so that, in contrast to the situation in Butler v Butler, The Queen’s Proctor Intervening  1 FLR 114, the court here did have jurisdiction to entertain the petition.
viii) Eighthly, the petition correctly pleaded the only relevant ground, namely that “the marriage has broken down irretrievably”.
- ix) Ninthly, the error in correctly identifying the relevant fact did not prevent the court entertaining the petitioner’s subsequent application for a decree: in Leggatt LJ’s sense of the word, District Judge Steel had jurisdiction to hear the petitioner’s application for a decree nisi. The District Judge’s error was, to adopt Leggatt LJ’s words, an inadvertent failure to observe a statutory provision – section 1(2) of the 1973 Act – against the exercise of it.
- x) Tenthly, there was in the present case another fact in existence at the date of the petition which if properly pleaded – by an amendment of the petition – would undoubtedly have justified the court granting a decree nisi and thereafter making the decree absolute.
- xi) Finally, although this is not, I emphasise, a necessary pre-requisite to my conclusion, in the present case the evidence to establish that fact was actually set out in Part 6 of the petition. So, in this particular case, the defect in the petition came down to this: that the cross had been put in the wrong box in Part 5 – a defect simply curably by putting the cross in the correct box. It is sometimes said that Roger Casement was hanged by a comma, but, whatever the truth of that, one has to ask what conceivable principle of justice or public policy could possibly be served by treating as nullities decrees where the parties were the innocent victims of failure by the court itself, and where their subsequent marriages, entered into in complete good faith and in reliance upon the court’s own orders, would thereby be treated as bigamous, when the entire problem derives from the fact that a cross was placed in the wrong box. We are no longer in the days of Parke B. Surely the modern judicial conscience would revolt if compelled to come to such a conclusion.
(So actually, and Sir James Munby says this, DJ Middleton-Roy was right in the hot-fix that he applied to the situation, although there was quite a bit of judicial reasoning to get to that point. In old Math teacher language, DJ Middleton-Roy had the right answer, but hadn’t shown his working.)
I wasn’t familiar with the Roger Casement was hanged by a comma history, so there’s a link here, and it is a worthwhile side-track (one of the things I like most about Sir James Munby is that his judgments expand your mind)
I think the portions of the judgment dealing with the human realities are also interesting and bring the case to life
41.The focus of the hearing was, inevitably, on the difficult questions of law to which I must come in due course. But it must never be forgotten that, at the end of the day, this application affects four human beings – P, M and their new spouses – in a matter which is of transcendental importance to all of them. P, in her statement, puts the point in understandably emotive and powerful language:
“I am an innocent party to these proceedings … My current husband and I married in Brazil in good faith after the amended petition … on 24/03/17 before God and our families … the idea that I have committed bigamy is convulsing and my mental health is now being affected … if it indeed the case that my former husband and I is not divorced that means I am a bigamist [Bigamy is illegal in Brazil] irrespective if it was a legal oversight, and I can be arrested, detained and prosecuted if I try to annul the divorce.”
She then added this very important point:
“In addition as my husband is a Brazilian national who travels to the UK as my spouse will no longer be able to enter the UK as he will no longer be my spouse and the Home Office don’t allow partners visitation. This is going to affect my marriage severely.”
42.Ms Bazley and Ms Dunseath make similar points in their skeleton argument:
“In her statement [P] raises particular concerns about the fact that the setting aside of the decrees would seem to mean, amongst other things, that she had entered into a second marriage whilst already married – coming within the definition of the offence of bigamy, contrary to s.57 Offences Against the Person Act 1861 (and, it appears, a contravention of Article 1521(VI) of the Brazilian Civil Code – acting unlawfully by remarrying whilst still being married).
[Her] concerns are both legal, she may have committed an offence, and moral/spiritual, in that she feels deeply disturbed by potentially having committed that offence. Further, it is enormously distressing to her to contemplate that her marriage may be invalidated, despite having taken place in good faith, in a ceremony witnessed by family and friends.
The setting aside of the decrees would cause [her] emotional, psychological, and financial harm, and may disturb her new relationship.”
43.The potential immigration problems in this kind of situation are all too real, as the reaction of the Home Office to the predicament in which the parties in Solovyev v Solovyeva found themselves, so clearly illustrates: see Solovyev v Solovyeva  EWFC 1546,  1 FLR 734, para 4 and Solovyev v Solovyeva  EWFC 20, para 7. The fact that the official policy of the “hostile environment” has recently been replaced with the semantically less challenging policy of the “compliant environment” is, one suspects, of little comfort to bewildered people like P and M.
44.To that I should add what may be obvious from what I have already said but nonetheless needs to be stated plainly and without equivocation: both M and P are the wholly innocent victims of serious mistakes by the court, mistakes not merely by court staff but, more importantly, by judges – Deputy District Judge Quin and District Judge Steel. True it is, that the original mistake was by M, when he made the mistake of marking the wrong box in Part 5 of the petition, and that if he had not made that mistake there would never have been any problem. But that is wholly beside the point. If M’s mistake was the causa sine qua non – the ‘but for’ cause of what happened –, the causa causans – the real, primary, cause was the errors of the court, of the judges