Baron v Baron

JurisdictionEngland & Wales
JudgeSir James Munby
Judgment Date17 April 2019
Neutral Citation[2019] EWFC 26
Date17 April 2019
CourtFamily Court
Docket NumberCase No: SO15D06367 BU16D15832 EC13D00309 ZC18D00225 ZC18D00224 ZC19D00014 ZC19D00007

[2019] EWFC 26

IN THE FAMILY COURT

Sitting at the Royal Courts of Justice

(In open court)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Sir James Munby (SITTING AS A JUDGE OF THE HIGH COURT)

Case No: SO15D06367

SO16D00440

BU16D15832

EC13D00309

ZC18D00225

ZC18D00224

ZC19D00014

ZC19D00007

In the matter of 4 defective divorces

Baron
and
Baron
Bird
and
Bird
Checova
and
Ilyas
Campbell-Anderson
and

Mr Simon P G Murray (instructed by the Government Legal Department) for the Queen's Proctor in all four cases

Mr Saravanak Kumar (instructed by Zoi Bilderberg Law Practice) for the petitioner wife in Checova v Ilyas

None of the other parties were present or represented

Hearing date: 4 April 2019

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

Sir James Munby (SITTING AS A JUDGE OF THE HIGH COURT)

Sir James Munby, sitting as a Judge of the High Court:

1

These are applications by the Queen's Proctor for the setting aside of decrees nisi and absolute of divorce in four different cases on the ground that, as the Queen's Proctor asserts, all the decrees are void – nullities – by reason of non-compliance with section 3(1) of the Matrimonial Causes Act 1973. Section 3(1) provides that:

“No petition for divorce shall be presented to the court before the expiration of the period of one year from the date of the marriage.”

The background

2

The background to these applications is set out in some detail in my recent judgment in M v P, The Queen's Proctor intervening [2019] EWFC 14, paras 7–19, which I shall take as read. The letter to the Queen's Proctor dated 17 April 2018 which I referred to in M v P, para 17, raised five cases for his consideration: one was the case in which I gave judgment in M v P; another was what I referred to as ‘the Bradford Case’, which in the event I sent back for final disposal in the Family Court at Bradford; the other three are three of the four which are now before me. They are Baron v Baron, SO15D06367, dealt with by the South West Divorce Unit; Bird v Bird, SO16D00440, likewise dealt with by the South West Divorce Unit; and Checova v Ilyas, BU16D15832, dealt with by the Bury St Edmunds Divorce Unit. The fourth case now before me came to light after I had written to the Queen's Proctor. It is Campbell-Anderson v Anderson, EC13D00309, dealt with initially by the Clerkenwell & Shoreditch County Court and subsequently by the Family Court at Clerkenwell & Shoreditch.

3

Because each of these four cases raises essentially the same points, it is convenient to deal with the law before turning to the facts.

The law

4

In my judgment in M v P, paras 47–103, I considered the relevant jurisprudence in very considerable detail, analysing a large number of cases ranging chronologically from Woolfenden v Woolfenden [1948] P 27 to Hermens v Hermens, The Queen's Proctor Intervenor [2017] EWHC 3742 (Fam). Included in that analysis was, paras 70–72, the decision of Sir Stephen Brown P in Butler v Butler, The Queen's Proctor Intervening [1990] 1 FLR 114, which, if correctly decided, is determinative of the present cases. It is convenient to repeat what I said about that in my judgment in M v P:

“70 … This was a case where a decree nisi and decree absolute were granted although the petition had been presented less than one year after the marriage and therefore in non-compliance with section 3 of the Matrimonial Causes Act 1973. Sir Stephen held that the petition was a nullity, which the court had no jurisdiction to entertain, and that the decree nisi and decree absolute were null and void.

71 It is useful to see how Mr James Holman, as he then was, put the argument on behalf of the Queen's Proctor. Sir Stephen summarised it as follows (page 117):

“Accordingly, submits Mr Holman, by operation of statute rather than as a consequence of the provisions of any rules of court, a petition presented before the expiration of one year from the date of the marriage is null and void and a court therefore has no jurisdiction to entertain it …

By reference to a number of authorities, beginning with Spawforth v Spawforth [1946] P 131, Woolfenden v Woolfenden [1948] P 27 and to the decision in Dryden v Dryden [1973] Fam 217, Mr Holman has felt constrained to argue that in a case where the petition upon which the decree of divorce is founded is one which breaches the provisions of s. 3 of the Matrimonial Causes Act 1973, as amended, there is an inescapable statutory bar which prevents a court from exercising a discretion to alleviate a situation which might nevertheless appear to be one brought about by genuine and honest mistake.

He has also referred to the case of Nissim v Nissim [1988] Fam. Law 254 which, whilst not dealing with the same situation, provides an example of a defect arising as a result of a breach of a statutory provision. This shows that although it may be looked upon as being highly technical, nevertheless a breach of a statutory provision is fundamental and, unhappily, has the effect of rendering decrees pronounced in apparent good faith null and void.”

72 Sir Stephen continued (pages 117, 118):

“I am satisfied that Mr Holman has correctly stated the position in law where there is a fundamental breach of the provisions of s. 3(1) of the Matrimonial Causes Act 1973, as amended …

There is unfortunately, as is submitted by the Queen's Proctor, a situation which cannot be put right merely by an order of this court. It cannot render valid a decree which was in fact void by statute and not merely voidable.”

5

For reasons which will shortly become apparent, I need to refer to a little more of Sir Stephen's judgment. The parties in the case had married on 8 October 1986. The wife presented her petition on 2 September 1987. On 27 January 1988 her solicitor sent the court a document described as an “amended petition”, which was re-dated 4 January 1988. As Sir Stephen observed (page 116):

“Instead of presenting a fresh petition for divorce in January 1988, the solicitors had amended it.”

6

Sir Stephen proceeded (page 118):

“Mr Lewis [counsel representing the wife] seeks to argue that the court should regard the document which was filed in February 1988 as a fresh, independent petition rather than an amendment of an existing petition.

I have a great deal of sympathy with Mr Lewis's position and that of both his professional client and of his lay client, because as the Queen's Proctor, through Mr Holman, has made abundantly clear, there is no suggestion in this particular case of any want of probity on the part of anybody. There is unfortunately, as is submitted by the Queen's Proctor, a situation which cannot be put right merely by an order of this court. It cannot render valid a decree which was in fact void by statute and not merely voidable.

Mr Lewis argues that although the document is headed amended petition, the addition by the solicitor of the words ‘pursuant to MCR12, sub-rule 4’ indicated that he was in fact filing a fresh petition and not merely seeking to file an amended petition.

I regret that I am unable to accept that submission. I have sympathy with Mr Lewis, but I regret I cannot accept it. It is clear that unfortunately the position was overlooked that the only petition filed had been filed within 12 months of the celebration of the marriage. The purported amendment made in February 1988 could not constitute a fresh petition. Of course if a fresh petition had been filed at that time, it would not have fallen foul of the provisions of s. 3(1) of the Matrimonial Causes Act of 1973, but that is not the position here. I am satisfied that what occurred was an unfortunate mistake. Nevertheless, no fresh petition was in fact filed.”

7

Paragraph 4 of the President's Guidance (Interim): Defective Divorce Petitions / Decrees which I had issued on 23 April 2018 and set out in M v P, paras 18–19, includes this:

“It appears from the decision of Sir Stephen Brown P in Butler v Butler, The Queen's Proctor Intervening [1990] 1 FLR 114, [1990] FCR 336 … that:

(1) Where a petition has been issued in breach of section 3, it is null and void and the court has no jurisdiction to entertain it; with the consequence that any decree nisi or decree absolute purportedly granted is likewise null and void.

(2) The defect cannot be cured by amendment of the petition.

(3) The court has no power to grant discretionary relief.”

Further consideration since April 2018 leaves me clearly of the view that this is, so far as it goes, and within the inevitable limits of compression, an accurate summary of Sir Stephen's decision.

8

The only remaining question is whether Sir Stephen's decision is correct and properly to be followed. That, of course, was not a point which arose for decision in M v P; it is, in contrast, a point which does arise for decision in the present cases.

9

In my judgment, Butler v Butler, The Queen's Proctor Intervening [1990] 1 FLR 114 was correctly decided and I must follow it:

i) First, and focusing on Sir Stephen's judgment itself, it is clear, compellingly articulated and, in my judgment, plainly correct for the reasons Sir Stephen gave.

ii) Secondly, that conclusion is reinforced if one locates it within the entire jurisprudence as I analysed it in M v P, paras 47–103; Sir Stephen's analysis and conclusions fit very comfortably within the jurisprudence and, in particular, accord with the distinction drawn by Leggatt LJ in Manchanda v Manchanda [1995] 2 FLR 590 in the passage (at page 595) which I quoted in M v P, para 79.

iii) Thirdly, and as I noted in M v P, para 79, “although Leggatt LJ expressed doubt about the decision in Batchelor v Batchelor [1984] FLR 188, he did not question the correctness of the decision in Butler v Butler, The...

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