Some couples who have been granted divorces may not actually be divorced. So, if they remarry, they may unwittingly commit bigamy – an offence punishable by seven years in prison.
This is because a raft of divorces has been granted in breach of Section 3 of the Matrimonial Causes Act 1973, which places a bar on petitions for divorce within one year of marriage.
The mistakes happened at 11 family law courts across England and Wales – but the details of the divorces have not been revealed, so people may not know if their divorces are legitimate.
Sir James Munby, President of the Family Division, has revealed that, because of failures by divorce court staff, defective divorces have been processed and parties have been wrongly granted a divorce that breached the time limits imposed.
Swati said: “Sir James said court fees will be waived for those who find themselves with defective divorces. However, it is less clear how courts will recompense individuals for the emotional toll of discovering they have a defective divorce.
“The emotional impact will be particularly severe where a person who thinks they are legally divorced remarries, or is due shortly to remarry, only to find out they may have effectively committed bigamy.
“Sir James has advised the courts to communicate with those affected ‘in appropriately sympathetic and apologetic language,’ a move we welcome.
“Divorce is a traumatic experience without the added problem that some people may have been wrongly granted decrees nisi or absolute because the correct timeframes have not been adhered to.
“We understand from Sir James that updated software, when the online divorce project is fully operational, will prevent errors of this kind happening in the future.”
Swati added that people filing for divorce need to be aware that legal timeframes for divorce include:
- when the respondent has ‘deserted’ the petitioner for a continuous period of at least two years after the petition has been presented to the court
- when the parties have lived apart for a continuous period of at least two years and consent to a decree being granted
- when the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition.
The word ‘continuous’ is key here: any period of reconciliation must be taken into account and cannot form part of the period of separation.