M v P

This is an application by the Queen’s Proctor to set aside a decree nisi of divorce granted in the Willesden County Court on 21 November 2013. The decree was made absolute on 24 February 2014. The Queen’s Proctor asserts that both decrees are void – nullities – by reason of non-compliance with section 1(2)(d) of the Matrimonial Causes Act 1973. The application is of profound concern and worry to the parties, both of whom have since re-married on the faith of the decrees. The matter is also of very great public concern because the cause of the predicament in which the parties now find themselves was error on the part of the court, error not merely by the court staff but also, and fundamentally, error by judges.

Before turning to the facts of the case, it is convenient first to set out the relevant legislative framework and then to describe the background.

Jurisdiction to entertain a divorce petition is conferred by section 5(2) of the Domicile and Matrimonial Proceedings Act 1973:

the court has jurisdiction under the Council Regulation; or

no court of a Contracting State has jurisdiction under the Council Regulation and either of the parties to the marriage is domiciled in England and Wales on the date when the proceedings are begun.”

in whose territory –

the spouses are habitually resident, or

the spouses were last habitually resident, insofar as one of them still resides there, or

the respondent is habitually resident, or

in the event of a joint application, either of the spouses is habitually resident, or

the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made, or

the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and is either a national of the Member State in question or, in the case of the United Kingdom and Ireland, has his or her “domicile” there;

of the nationality of both spouses or, in the case of the United Kingdom and Ireland, of the ‘domicile’ of both spouses.

Section 3(1) of the Matrimonial Causes Act 1973 provides that:

Jurisdiction to grant a decree, assuming that the English court has jurisdiction to entertain the petition, depends upon section 1 of the 1973 Act, which so far as material for present purposes provides as follows:

that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;

that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;

that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;

that the parties to the marriage 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 being granted;

that the parties to the marriage have lived apart for a

It will be noted that there is only one ground for divorce, namely “that the marriage has broken down irretrievably.” Section 1(2) merely defines the facts on which alone a decree may be granted.

Before setting out the facts of this particular case, I need to explain the background.

As President of the Family Division, I was first alerted to these problems on 26 March 2018 by Cobb J, the Family Division Liaison Judge for the North-Eastern Circuit, whose attention had been drawn to an issue affecting a decree absolute granted in the Family Court at Bradford. At my request he arranged for a copy of the court file to be sent to me. I was also sent a copy of a spreadsheet for March 2017 which included details of the Bradford case in question.

These spreadsheets, I discovered, are in a standard form. The court file in the present case contains a copy of the relevant page from the monthly spread sheet showing the data in relation to the case before me. The first column records the Court Code; the second column, arranged in alphabetical order, the Court Name; the third column the “Dissolution Type”, eg, OSD for the type of petition I am here concerned with; the fourth column the Case Number; the next two columns the Date of Petition and Date of Dissolution; the next column the Grounds, here shown as DD; the next column the Date of Union; the next two columns the Petitioner Gender and the Respondent Gender; the next four columns the parties ages and status at Union; and the final column the “Error Type”, eg, “Petition < 1 yr” or “Petition < 2 yr (desn/sepn)” or “Petition < 5 yr (separation)” or, as in the present case, “Petition < 2yr (consent)”.

The page from the monthly spread sheet in the present case lists 27 cases from courts listed alphabetically from Manchester to York (so it is reasonable to assume that there was at least one previous page listing the courts from A to L). The final column includes 11 instances of “Petition < 1 yr”; 6 instances of “Petition < 2 yr (desn/sepn)”; 2 instances of “Petition < 5 yr (separation)”; and 1 instance (the present case) of “Petition < 2yr (consent)”.

I return to the narrative. On 29 March 2018 I sent the following email to the Family Jurisdictional Operational Support Manager at HMCTS Headquarters:

I received the following response by email later the same afternoon:

be able to see from the data on the paper file that a clerical inputting error has occurred – in this circumstance they would amend FMan accordingly

be able to see from the paper file that no error has been made (e.g. the case was entered onto FamilyMan in error and doesn’t exist) in this instance the Court would make a note on the spreadsheet and return it to the CFC who will update ONS accordingly.

The system explained in this email has been in place for a long time. It, or its ancestor, is referred to in passing by Sir Stephen Brown P in his judgment in Butler v Butler, The Queen's Proctor Intervening [1990] 1 FLR 114, page 116.

I responded the same evening, seeking details of the cases in 2016 where there had been an error by the court rather a mere data logging error.

On 3 April 2018 I received an email confirming that “the vast majority of errors are related to data input errors by court staff which do not impact the actual divorce proceedings themselves.” An attached list identified 11 cases in 2016 which “did impact the validity of the proceedings” and set out helpful details of what had happened and of the “action taken to resolve.” One of the cases on this list was the case which is now before me. (A further case was added to the list the next day.)

I responded by email the same afternoon, observing that:

Having examined all these files personally, I wrote officially to the Queen’s Proctor on 17 April 2018:

the petition, in breach of section 3 of the Matrimonial Causes Act 1973, had been issued within one year of the marriage, or

although there had been no breach of section 3, the relevant period prior to the presentation of the petition specified in section 1(2)(d) or 1(2)(e) had not elapsed.

On 23 April 2018 I issued President’s Guidance (Interim): Defective Divorce

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.

Nothing in this section shall prohibit the presentation of a petition based on matters which occurred before the expiration of that period.”

the petition, in breach of section 3, had been issued within one year of the marriage, or

although there had been no breach of section 3, the relevant period prior to the presentation of the petition specified in section 1(2)(d) or 1(2)(e) had not elapsed.

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.

The defect cannot be cured by amendment of the petition.

The court has no power to grant discretionary relief.

In consequence, if a party has subsequently remarried that marriage is invalid (see Woolfenden).

It then proceeded to set out the guidance:

The file must immediately be put before a salaried judge (a District Judge or a Circuit Judge, not a deputy or a legal adviser).

If the judge is uncertain how to proceed, or is minded to invite the intervention of the Queen’s Proctor, the judge should first contact the President of the Family Division.

In a straightforward case where there has been a breach of section 3 but no decree has yet been granted, the judge can simply make an order dismissing the petition, ensuring that a suitable explanatory letter is sent to the parties indicating that, if desired, a further petition can be issued in due course.

In a straightforward case where, although there has been no breach of section 3, there has been non-compliance with section 1(2)(c), 1(2)(d) or 1(2)(e), but no decree has yet been granted, the judge should consider whether, if the facts warrant it, it may be possible and appropriate to permit the petition to be amended to plead one of the grounds set out in section 1(2)(a) or 1(2)(b).

In a case where there has been a breach of section 3 or non-compliance with section 1(2)(c), 1(2)(d) or 1(2)(e) and a decree (whether nisi or nisi and absolute) has been granted, the judge should not, however plain and obvious the case may appear, make an order without giving the parties an opportunity to be heard (i) on the question of whether the decree is null and void and (ii) on the question, in a case where there has been no breach of section 3 but non-compliance with section 1(2)(c),

If a new petition is to be issued:

The petition should be sent to and issued in the court which dealt with the previous petition.

To avoid possible confusion, the new petition must be issued under its own number (not the number of the previous petition).

HMCTS will waive payment of the issue fee on the new petition.

The new petition should be processed and determined and (where appropriate) a new decree nisi should be granted as quickly as possible. In such cases it will generally be appropriate in accordance with section 1(5) to fix a very short period, measured in days not weeks, for the decree nisi to be made absolute: compare, albeit on very different facts, Solovyev v Solovyeva [2014] EWFC 20.

HMCTS and judges will wish to be alert to the potentially devastating impact on litigants of being informed that there is a ‘problem’ with their decree, especially if (and this is unlikely to be known to the court when the first communication is made) a litigant who believes that they have been validly divorced has remarried or is due very shortly to remarry. Communications should accordingly be expressed in appropriately sympathetic and apologetic language.

For the future, I am assured by HMCTS that the software will prevent errors of this kind occurring when the online divorce project is fully operational.”

So much for the background.

I need to take the facts in some detail.

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

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 19^th September 2011.”

The problem which has given rise to the present proceedings is immediately apparent:

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

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 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

The order further ordered (“It is ordered that”) that:

Filing and service of an application to amend the petition is dispensed with.

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.

As I have already mentioned, this was one of the cases referred to me by HMCTS and which I then referred on to the Queen’s Proctor by my letter of 17 April 2018.

By an order dated 11 September 2018 made following a hearing on 5 July 2018, I gave the Queen’s Proctor permission to intervene. In accordance with directions I gave, the Queen’s Proctor filed his plea. It is dated 13 September 2018, signed by Mr Simon P G Murray of counsel, and reads as follows:

Pursuant to section 8 Matrimonial Causes Act 1973 the Queen’s Proctor has power to intervene in divorce proceedings where there are or appear to be irregularities. Although the section might appear to limit the right of the Queen’s Proctor to intervene up to the point at which the decree is made absolute, there is clear authority to the effect that the Queen’s Proctor may intervene after a void decree absolute: Ali Ebrahim v Ali Ebrahim (Queen’s Proctor Intervening) [1983] 1 WLR 1336.

The Queen’s Proctor seeks permission to intervene in this petition as it appears that the decrees have been granted contrary to the statutory provisions contained in section 1 of the Matrimonial Causes Act 1973.

The Petitioner and the Respondent were married on 19 September 2011 … [in] London.

The Petitioner presented a petition signed on 14 June 2013 to Willesden County Court sometime in June 2013. The petition was returned to … [him] on three separate occasions as the correct fee had not been paid and there were errors and omitted portions on the form.

The petition finally accepted was recorded as having been received on the 23 July 2013 and issued on 26 July 2013.

This petition, at part 5, sought a divorce on the grounds that the parties had lived apart for a continuous period of two years. At part 6, the Petitioner elaborates that “the Respondent has refused to share the same household as the petitioner since the marriage took place on 19 September 2011.” On the face of the issued petition, only 22 months had in fact elapsed.

An acknowledgement of service was signed by the Respondent on 12 August 2013

Thereafter, the petition was dealt with under the special procedure and, in due course, a decree nisi was pronounced on 21 November 2013 and made absolute on 24 February 2014.

Sometime in October 2016, after the making of the decree absolute, it came to the attention of the court staff that the petition should not have been issued relying upon that ground as the period of two years separation relied on not having elapsed at the time of issue.

The matter was listed for a directions hearing on 18 January 2017. Both parties received notice of the hearing, but only the Petitioner was able to attend.

In the preamble to the Order arising from the hearing, the District Judge recorded that the original petition dated 14 June 2013 “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”.

It is further recorded in that Order that permission was given to the Petitioner to amend the petition dated 16 June 2013 and that the Decree Nisi of 21 November 2013 and Decree Absolute of 24 February 2014 remained valid. It is also recorded that the Petitioner’s subsequent marriage was not affected by this Order.

The Order then directs that permission is given to the Petitioner to amend the petition dated 14 June 2013 in the form of the amendment dated 18 February 2017 [sic] [this comment is in the original] and that the Decree Absolute pronounced on 24 April 2014 [sic] [this comment is in the original] remains valid.

In the Court file, there is a copy of the amended petition. At part 5, the ground previously relied on is struck out and the ground of unreasonable behaviour is checked instead and underlined. On the signature page, the Petitioner has signed again with the date 18 January 2017.

The Queen’s Proctor avers that the District Judge erred in making the order that the decree absolute made on 24 February 2014 remained valid. At the time when that order was made it was founded on a finding of fact which was impossible – in that the period of separation prior to the issue of the petition cannot have been two years from the date of the marriage. The statutory condition precedent required for making a decree of divorce in section 1(2) of the 1974 Act was therefore not met. The District Judge’s purported retrospective validation of the decrees of divorce in his order of 18 January 2017 was in error. Accordingly the decrees obtained on that basis were void and incapable of having enduring effect.

In these circumstances the District Judge had no power to the grant the discretionary relief which he sought to do in his order of 18 January 2017, by analogy with the situation which prevailed in Butler v Butler (Queen’s Proctor Intervening) [1991] FLR 114. The defect was not capable of being cured by the amendment of the petition following the making of decrees.

The decree nisi pronounced on 21 November 2013 and the decree absolute made on 24 February 2014 be set aside as null and void; and

The petition dated 14 June 2013, as amended, be

The matter was listed for hearing before me on 31 January 2019. The Queen’s Proctor was represented by Mr Murray. Both M and P appeared in person. In addition to the Willesden Court file, and the Queen’s Proctor’s Plea, I had Mr Murray’s skeleton argument on behalf of the Queen’s Proctor dated 29 January 2019 and a statement by P dated 30 January 2019. It was obvious that this had been prepared with the benefit of skilled legal advice. Entirely appropriately in the circumstances it set out not merely various matters of fact but, in addition, an explanation of the legal basis of P’s case that I should dismiss the Queen’s Proctor’s application. In answer to a question from me, P said that she had been unable to obtain professional representation. I did not think it appropriate to probe further but suspected that this was because of lack of means.

I adjourned the hearing until 28 February 2019. The recitals to my order explained why:

After business hours on 27 February 2019 P was refused exceptional funding by the Legal Aid Agency, for reasons set out in a letter dated 28 February 2019. But when the hearing resumed before me that morning, P was not bereft of assistance, being represented pro bono by Ms Janet Bazley QC and Ms Katherine Dunseath, instructed by Ms Sundeep Budwal and Mr Paul Nuttall of Messrs Duncan Lewis. At very short notice (for they did not receive all the papers until 26 February 2019) Ms Bazley and Ms Dunseath were able to prepare by the morning of 27 February 2019 what, if I may say so, was a very impressive skeleton argument. Very properly, Ms Bazley acknowledged that this was very much a ‘team effort’, the team including, as well as herself and Ms Dunseath, a pupil in chambers, Mr William Vaudry, whose contribution it is only right that I should publicly recognise. I am immensely grateful, as I sure P is, to all three of them as well, of course, to Ms Budwal and Mr Nuttall.

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.

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:

Ms Bazley and Ms Dunseath make similar points in their skeleton argument:

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 [2014] EWFC 1546, [2015] 1 FLR 734, para 4 and Solovyev v Solovyeva [2014] 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.

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.

Mr Murray’s sheet anchor is the decision of Sir Stephen Brown P in Butler v Butler (Queen’s Proctor Intervening) [1991] FLR 114. Although that was a case where there had been a non-compliance with section 3 of the Matrimonial Causes Act 1973, there is, he submits, no reason for distinguishing it, or for that matter, the decision of Barnard J in Woolfenden v Woolfenden [1948] P 27, in a case which is based on noncompliance with section 1(2)(d). Focusing on the words “The court … shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court … that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition (emphasis added)”, his submission is short and simple: If two years have not elapsed prior to the presentation of the petition it is impossible for the court to hold that a marriage has irretrievably broken down on that ground. Any decree of divorce ostensibly based on this ground will therefore be contrary to the statutory scheme.

Ms Bazley and her team meet this head-on. Their central submissions can be summarised as follows:

This case can and should be distinguished from those where the defect went to the jurisdiction of the court, for example where, as under section 3, there is a jurisdictional bar on a petition being presented before the expiration of one year from date of marriage. The case law, they say, illustrates that decrees are

In contrast, the court here did have jurisdiction to receive the petition, which contained the essential assertion that “that the marriage has broken down irretrievably”, and to grant a decree on that “ground”. The error in correctly identifying the relevant “fact” did not go to jurisdiction and made the decrees voidable rather than void.

Moreover, unreasonable behaviour on the part of the respondent, another fact to support the ground of irretrievable breakdown, existed at the date of the original petition and the relevant evidence to establish that “fact” was actually set out in Part 6 of the petition. Thus, the defect in the petition was very simply curable by the petitioner putting a cross in the correct box in Part 5. In these circumstances the decrees were not void, merely voidable.

At this point it is necessary for me to go through the authorities, unavoidably in some detail. It is convenient to take them in chronological order.

I start with the decision of Barnard J in Woolfenden v Woolfenden [1948] P 27, where there had been non-compliance with section 183(3) of the Supreme Court of Judicature (Consolidation) Act 1925, as inserted by Section 9 of the Matrimonial Causes Act 1937:

The next case is Everitt v Everitt [1948] 2 All ER 545, where a decree nisi followed by a decree absolute had been made though it subsequently transpired that the respondent husband had never been served with the petition. Both decrees were set aside by the Court of Appeal, where the leading judgment was given by Lord Merriman P. He said (page 546):

In Wiseman v Wiseman [1953] P 79, the husband had been granted a decree nisi and a decree absolute, having previously obtained an order for substituted service on the wife of his petition, relying for that purpose on evidence which was insufficiently candid. The Court of Appeal held that in the absence of fraud the decrees were voidable, not void, and that the court had jurisdiction (which it exercised) to set aside the decrees and order a retrial even though the husband had remarried and had a child. Somervell LJ said (page 87):

O’Connor v Isaacs and others [1956] 2 QB 288 arose out of proceedings in which justices had purportedly exercised their powers under the Summary Jurisdiction (Separation and Maintenance) Acts 1895 to 1925. Section 4 of the Summary Jurisdiction (Married Women) Act 1895, read together with section 1 of the Summary Jurisdiction (Separation and Maintenance) Act 1925, provided that a married woman could apply to a court of summary jurisdiction for orders under the Acts in a number of specified circumstances, one being (see section 4 of the 1895 Act) that her “husband shall have been guilty of persistent cruelty to her.” The applicant wife alleged that her husband had been guilty of persistent cruelty. The justices, although finding the allegation not proved, nonetheless ordered her husband to pay her maintenance. Their order was eventually (page 330) set aside on appeal by the Divisional Court of the Probate Divorce and Admiralty Division, which “discharged” the order. The husband then brought proceedings in the Queen’s Bench Division claiming damages against the justices. His action was dismissed by Diplock J, as he then was, and his appeal was dismissed by the Court of Appeal.

The husband’s contention (pages 292, 361-362) was that the order of the justices was null and void. It was conceded before Diplock J (pages 292-293, 352) that the justices had had “no jurisdiction” to make the order, “it being a condition precedent to their right to make an order that the husband should be guilty of one of the matrimonial offences set out in section 4.” But (page 295) it was argued on behalf of the justices, represented it may be noted by Mr G G Baker QC, later Sir George Baker P, that the order was only voidable and conclusive until set aside. The riposte on behalf of the husband (page 301) was that the order was bad on its face and therefore void. Diplock J said (page 307) that there was: “lack of jurisdiction because no matrimonial offence had been committed.” He had earlier said (page 304):

In the Court of Appeal, Singleton LJ said (page 331):

Tantalisingly, so far as I can see, neither in the Divisional Court nor subsequently was there any explicit judicial statement as to whether the order was void or voidable.

The next case is the decision of Sir Jocelyn Simon P, as he then was, in F v F [1971] P 1, where there had been non-compliance with section 33(1) of the Matrimonial Causes Act 1965:

Sir Jocelyn’s characteristically meticulous and illuminating judgment should be read in full. The following extracts, however, adequately reflect the essence of his reasoning:

Having referred to McPherson v McPherson [1936] AC 177, Sir Jocelyn then made this important observation (page 15):

The next case is the decision of the Court of Appeal in P v P [1971] P 217 on appeal from the decision of Cairns J referred to above. This was another case where there had been non-compliance with section 33(1) of the Matrimonial Causes Act 1965. The Court of Appeal agreed, in terms, with both the decision and the reasoning of Sir Jocelyn in F v F [1971] P 1: see Davies LJ, page 222, Phillimore LJ, page 224, and Karminski LJ, page 225. Phillimore LJ said (page 225):

Next there is the decision of Sir George Baker P in Dryden v Dryden [1973] Fam 217, where because of a judicial error the wife lost her right to make an application under, and was thereby denied the protection of, section 6 of the Divorce Reform Act 1969 (the current equivalent is section 10 of the Matrimonial Causes Act 1973):

The court hearing an application by the respondent under this section shall consider all the circumstances, … and notwithstanding anything in the foregoing provisions of this Act but subject to subsection (3) of this section, the court shall not make absolute the decree of divorce unless it is satisfied – (a) that the petitioner should not be required to make any financial provision for the respondent, or (b) that the financial provision made by the petitioner for the respondent is reasonable and fair or the best that can be made in the circumstances.

The court may if it thinks fit proceed without observing the requirements of subsection (2) of this section if [etc].”

Focusing on the wording of section 6(2), Sir George observed (page 232) that the words “the court shall not make absolute, a decree of divorce unless it is satisfied that” are identical with the words of section 33 of the Matrimonial Causes Act 1965

Sir George considered a number of cases which there is no need for me to rehearse. During the course of this consideration, he commented wearily (page 234):

Sir George expressed his conclusions as follows (pages 236-237):

If the statute so provides …

When there has been a complete lack of jurisdiction, as, in O’Connor v Isaacs [1956] 2 QB 288, where justices made a matrimonial order which they had no power to make because no matrimonial offence had been committed …

Where the irregularity is such that it undermines the adversary procedure for the entire proceedings. And possibly (4) as stated in P E Joske’s Matrimonial Causes and Marriage

Wright v Wright [1976] Fam 114 was a case where there was non-compliance with section 6(2) of the Divorce Reform Act 1969 in circumstances where, in contrast to what had happened in Dryden v Dryden, the respondent wife had applied in accordance with section 6(1)(a). Rees J held that the non-compliance with section 6(2) rendered the subsequent decree absolute voidable and not void. Recognising that the decision of the Court of Appeal in P v P [1971] P 217, being on a different statutory provision, was not of itself determinative, and that, in the final analysis, the decision of Sir George Baker P in Dryden v Dryden [1973] Fam 217 turned on a different point, because there had not there been any non-compliance with section 6(2), the wife never having issued an application under section 6(1)(a), Rees J was nonetheless impressed by the analyses both in P v P, which he described as “compelling”, and in Dryden v Dryden. His conclusion (page 124) was that:

The next case is Ali Ebrahim v Ali Ebrahim (Queen’s Proctor Intervening) [1983] 1 WLR 1336, a decision of Sir John Arnold P. The decree nisi and decree absolute were made in circumstances where the petition had never been served on the respondent wife, the petitioner husband having filed an affidavit falsely stating that the signature on the acknowledgment of service was that of his wife. Sir John held that both decrees were void. Explaining why, he said (page 1338):

The next case, Batchelor v Batchelor [1984] FLR 188, was another decision of Sir John Arnold P. A decree absolute was made although there had been non-compliance with rule 66(2) of the Matrimonial Causes Rules 1977:

Finally, for the moment, the decision of the Court of Appeal in Nissim v Nissim [1988] Fam Law 254 (the case is not otherwise reported but I was supplied with a copy of the Official Transcript). Following the transfer by the Peterborough County Court to the High Court of a divorce petition, the petition was purportedly transferred back to the County Court pursuant to rule 27 of the Matrimonial Causes Rules 1977. Subsequently a judge in the County Court granted a decree nisi. In fact, rule 27 had been revoked and due to a lacuna in the drafting of section 38(2) of the Matrimonial and Family Proceedings Act 1984 there was no power to transfer the case back to the County Court. May LJ, with whom Ewbank J agreed, said (I quote from the

I pause at this point to take stock. In the preceding paragraphs I have considered twelve cases. In four cases – Woolfenden v Woolfenden [1948] P 27, Everitt v Everitt

It can be seen that the cases where the consequence of what had happened was that the decree was a nullity and void fall into three categories:

One case where the court had no jurisdiction to entertain the proceedings at all (Nissim v Nissim [1988] Fam Law 254).

Two cases where the petition had not been served and the principle in Craig v Kanssen [1943] KB 256 was applied (Everitt v Everitt [1948] 2 All ER 545 and Ali Ebrahim v Ali Ebrahim (Queen’s Proctor Intervening) [1983] 1 WLR 1336).

One case where there had been non-compliance with what is now section 9(2) of the Matrimonial Causes Act 1973 (Woolfenden v Woolfenden [1948] P 27).

Against this background, I come to the next case, the decision of Sir Stephen Brown P in Butler v Butler, The Queen’s Proctor Intervening [1990] 1 FLR 114, which is central to the issues I have to grapple with. 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.

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):

Sir Stephen continued (pages 117, 118):

In Callaghan v Hanson-Fox and another [1992] Fam 1, [1991] 2 FLR 519, a husband sought to set aside a decree absolute on the ground that the petitioner wife (since deceased) had sworn a false affidavit in support of the petition. The claim was dismissed by Sir Stephen Brown P. The applicant relied upon Ali Ebrahim v Ali Ebrahim (Queen’s Proctor Intervening) [1983] 1 WLR 1336 and Wiseman v Wiseman [1953] P 79. Again, Sir Stephen had the assistance of Mr Holman, by now Mr James

Sir Stephen then quoted passages from Bater v Bater [1906] P 209, Kemp-Welch v Kemp-Welch [1912] P 82 and Crosland v Crosland [1947] P 12 before continuing (page 10):

In Manchanda v Manchanda [1995] 2 FLR 590 a decree absolute had been granted in circumstances where there had been non-compliance with both section 9(2) of the Matrimonial Causes Act 1973 and rule 2.50(2) of the Family Proceedings Rules 1991. Section 9(2):

The question for the Court of Appeal was whether the decree absolute was a nullity and void, or merely voidable. It was common ground that the case was indistinguishable from Woolfenden v Woolfenden [1948] P 27, so the issue became (page 592) whether Woolfenden v Woolfenden was correctly decided. The Court of Appeal held that it was and followed the earlier case.

Leggatt LJ referred to eight cases in each of which the order was held voidable. The first three – F v F [1971] P 1, P v P [1971] P 217 and Wright v Wright [1976] Fam 114 – he identified (page 593) as being:

Leggatt LJ continued (pages 594-595):

He continued (page 595):

Moynihan v Moynihan (Nos 1 and 2) [1997] 1 FLR 59 was an application by the

Explaining why the decree absolute was a nullity, Sir Stephen said this (pages 67-68):

In the next case, Krenge v Krenge [1999] 1 FLR 969, a husband sought to have a decree absolute set aside as a nullity in a situation where there had been, as Holman J put it (page 973), “a catalogue of errors, misjudgments or delays at different stages by almost everyone involved in this case.” For present purposes, I need refer only to three matters:

The court had sent the husband, in accordance with rule 2.36(2) of the Family Proceedings Rules 1991, a ‘Certificate of Entitlement to a Decree’ containing formal notice of the date fixed for pronouncement of a decree nisi.

On the other hand, the court did not send the husband a copy of the decree nisi, as required by rule 10.16(1) of the Family Proceedings Rules 1991, until after the decree absolute had been granted.

Furthermore, the search of the records required by rule 2.49 of the Family Proceedings Rules 1991 to be carried out by the court before the decree is made absolute, if it took place, failed to reveal, as it should, the fact that the husband had sought a stay of the proceedings, which application was still outstanding.

In relation to the first of these failures, Holman J, having considered Dryden v Dryden [1973] Fam 217 and Manchanda v Manchanda [1995] 2 FLR 590, said this (pages 977-978):

In Dennis v Dennis [2000] 2 FLR 231, a sustained attack was mounted before Wall J to the effect that Manchanda v Manchanda [1995] 2 FLR 590 had been wrongly decided or, alternatively, that it could not survive the Human Rights Act 1998. Essentially, the error, as in Manchanda v Manchanda, was that the decree absolute had been granted on the application of the respondent before the date permitted by section 9(2) of the Matrimonial Causes Act 1973. Wall J held that the case was indistinguishable from Woolfenden v Woolfenden and Manchanda v Manchanda; that he was bound by Manchanda v Manchanda; and that there was nothing in the Human Rights Act 1998 which required or enabled the court to treat the decree absolute as voidable rather than void. As he said (page 249):

Finally, I should refer to my own judgment in Rapisarda v Colladon: Re 180 Irregular Divorces [2014] EWFC 35, [2015] 1 FLR 597. That was what I described

So far as material for present purposes, I can start with this (para 7):

In relation to Callaghan v Hanson-Fox I said this (para 23):

In relation to Moynihan v Moynihan I said this (para 28):

My conclusion, therefore, was (para 29):

perjury without more does not suffice to make a decree absolute void on the ground of fraud;

perjury which goes only to jurisdiction to grant a decree and not to jurisdiction to entertain the petition, likewise does not without more suffice to make a decree absolute void on the ground of fraud;

a decree, whether nisi or absolute, will be void on the ground of fraud if the court has been materially deceived, by perjury, forgery or otherwise, into accepting that it has jurisdiction to entertain the petition;

a decree, whether nisi or absolute, may, depending on the circumstances, be void on the ground of fraud if there has been serious procedural irregularity, for example, if the petitioner has concealed the proceedings from the respondent.

My conclusion on the facts was (para 79) that:

In Grasso v Naik and Bhatoo (Twenty One Irregular Divorces) [2017] EWHC 2789, [2018] 1 FLR 753, a case analytically indistinguishable from Rapisarda v Colladon, I merely followed my own previous decision. In Hermens v Hermens, The Queen’s Proctor Intervenor [2017] EWHC 3742 (Fam), Baker J, as he then was, followed my two decisions. So Grasso v Naik and Hermens v Hermens do not add to the jurisprudence.

Pausing again to take stock, there are now, leaving Grasso v Naik and Bhatoo (Twenty One Irregular Divorces) [2017] EWHC 2789, [2018] 1 FLR 753, and Hermens v Hermens, The Queen’s Proctor Intervenor [2017] EWHC 3742 (Fam), out of account, eight cases in which the decree was held to be a nullity and void: Woolfenden v Woolfenden [1948] P 27, Everitt v Everitt [1948] 2 All ER 545, Ali Ebrahim v Ali Ebrahim (Queen’s Proctor Intervening) [1983] 1 WLR 1336, Nissim v Nissim [1988]

It can be seen that the cases where the consequence of what had happened was that the decree was a nullity and void fall into four categories:

Two cases where the court had no jurisdiction to entertain the proceedings at all (Nissim v Nissim and Butler v Butler).

Two cases where the court was persuaded to accept jurisdiction by fraud (Moynihan v Moynihan and Rapisarda v Colladon).

Two cases where the petition had not been served and the principle in Craig v Kanssen [1943] KB 256 was applied (Everitt v Everitt and Ali Ebrahim v Ali Ebrahim).

Two cases where there had been non-compliance with what is now section 9(2) of the Matrimonial Causes Act 1973 (Woolfenden v Woolfenden and Manchanda v Manchanda).

Leaving on one side the cases in categories (ii) and (iii), where the outcome was determined by the application of some general principle of law and not on any question of non-compliance with some particular statutory requirement, and adopting the distinction between ‘jurisdiction to entertain the petition’ (ie, whether the court has any jurisdiction at all to receive, hear and consider the petition) and ‘jurisdiction to grant a decree’ (ie, whether the court, assuming that it has jurisdiction to entertain the petition, has jurisdiction to grant a decree of divorce) which I drew in Rapisarda v Colladon: Re 180 Irregular Divorces [2014] EWFC 35, [2015] 1 FLR 597, para 7, one difference between the cases in categories (i) and (iv) is that the former relate to instances where the court had no jurisdiction to entertain the petition, whereas the latter were cases where the court did have jurisdiction to entertain the petition.

I therefore conclude that the answer to the central issue I have to determine:

is not to be determined by the distinction I drew in between Rapisarda v Colladon: Re 180 Irregular Divorces [2014] EWFC 35, [2015] 1 FLR 597, para 7 – that is a distinction important in cases which may fall within category (ii), but it does not assist in determining whether or not a case falls within category (iv);

is not to be determined by a mechanical application of Barnard J’s test in Woolfenden v Woolfenden [1948] P 27 (has the litigant “complied with the statute”?) – there is, as we have seen, a long line of cases where, despite noncompliance with some statutory requirement, the consequence has been that the decree is voidable, not void.

What then is the true distinction between, on the one hand, Woolfenden v Woolfenden [1948] P 27 and Manchanda v Manchanda [1995] 2 FLR 590, and, on the other hand, all the other cases? Leggatt LJ, as we have seen, drew a distinction between:

What were the features of Woolfenden v Woolfenden and Manchanda v Manchanda which meant that the court did not, in Leggatt LJ’s sense of the word, have jurisdiction? Although he did not go on to reason it out explicitly, there are, as it seems to me, three aspects of section 183, now section 9(2), which, taken together, point to the answer:

First, the section confers power on the court to grant a decree absolute on the application of respondent, in circumstances where, for whatever reason, the petitioner has not sought to do so.

Secondly, the power is expressly conferred on the court where, and only where, the respondent has made the appropriate application.

Thirdly, the application can be made only after the expiration of the specified period of three months.

The central issue is this case is whether, as Mr Murray asserts, the decrees are nullities and void or whether, as Ms Bazley asserts, they are merely voidable. There is no doubt that, short of the Supreme Court, the distinction is embedded in this area of law: compare the decisions of the Court of Appeal in P v P [1971] P 217 (decrees voidable) and in Manchanda v Manchanda [1995] 2 FLR 590 (decrees void). I can see no basis for any assertion – and this has not been suggested before me – that, for the purposes of the doctrine of precedent, either of these decisions of the Court of Appeal was ‘wrong’ or decided per incuriam. It follows that it is the duty of a judge a first instance, and, indeed, on this premise, of the Court of Appeal, to follow them

That apart, there are, I think, three general conclusions to be drawn from this survey of the jurisprudence:

First, a general lack of appetite to find that the consequence of ‘irregularity’ – I use the word in a loose general sense and not as a term of art – is that a decree is void rather than voidable. That is something one finds sometimes stated in terms – as by Phillimore LJ in P v P [1971] P 217, page 225, by Sir George Baker P in Dryden v Dryden [1973] Fam 217, page 236, by Rees J in Wright v Wright [1976] Fam 114, page 124, and by Holman J (who, as we have seen, knows a lot about these things) in Krenge v Krenge [1999] 1 FLR 969, page 978 – and it is, in truth, implicit in much of the analysis which underpins all these cases. And the language used is typically robust. If Phillimore LJ confined himself to the proposition that a court “ought not lightly to treat a decree absolute as void”, Sir George Baker P, followed by Holman J, said that the court “should strive to hold that a decree absolute is voidable rather than void”, while Rees J said that the court “should only hold a decree absolute to be void if driven by the terms of the relevant statute so to hold.”

Secondly, a general recognition that only if the decree is held to be voidable, and not void, will the court be able to do justice to all those whose interests are affected and having regard to the particular circumstances of the case.

Thirdly, recognition of the public interest, where matters of personal status are concerned, in not disturbing the apparent status quo flowing from the decree and the certainty which normally attaches to it. This, as Ms Bazley points out, is a general principle extending across matrimonial law and including such matters as the recognition in this jurisdiction of foreign divorces. In addition to the authorities I have already cited, Ms Bazley helpfully referred me to others, including, for example, the dicta of Scott LJ in Meier v Meier [1948] P 89, page 93, quoted by Sir Jocelyn Simon P in F v F [1971] P 1, page 13; of Sir Jocelyn himself on the same page (“the importance that Parliament attaches to the certainty of the change of status arising out of a decree absolute”); of Hughes J in El Fadl v El Fadl [2000] 1 FLR 175, page 191; of Stephen

Putting the issue in its wider context, Mr Murray helpfully took me to the discussion, in the eighth edition of De Smith’s Judicial Review, paras 4-058 to 4-074, of current thinking about the distinction in public law (that is, public law as the expression would be understood by administrative lawyers, rather than as it might be understood

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:

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 [1990] 1 FLR 114, and in Manchanda v Manchanda [1995] 2 FLR 590.

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.

Thirdly, and applying the approach articulated by Sir Jocelyn Simon P in F v F [1971] 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.

Fourthly, and as I have already explained, the fact that there has been noncompliance with the statute is not determinative.

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.

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).

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

Eighthly, the petition correctly pleaded the only relevant ground, namely that “the marriage has broken down irretrievably”.

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.

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.

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.

I can take this very shortly. There is nothing to be gained in exploring how discretion was exercised in the various cases to which I have referred. This must always depend, in the final analysis, upon the circumstances of the particular case, and the present case, happily, is most unusual.

The simple reality, in my judgment, is that there is only one way in which discretion can possibly be exercised here. M and P, to repeat yet again, are victims of the justice system; neither of them wishes the decrees to be disturbed; both have remarried on the faith of the decrees; both they and their new spouses would suffer grave hardship, emotional and social, were the decrees to be disturbed; and both they and their new spouses would face a possibility which cannot be ignored of disadvantageous treatment by State actors both here and in Brazil were the decrees to be disturbed: in this country because of the possible actions of the Home Office and in Brazil in the form of criminal proceedings for bigamy. (Happily, there could be no prospect of that

It follows that, in principle, District Judge Middleton-Roy was entirely right in the course he took, including by amending the petition in the way he did. There was, of course, no need to amend the decree absolute to reflect the amendment of the petition, because a decree absolute does not set out the facts on which, in accordance with section 1(2) of the Matrimonial Causes Act 1973, the decree has been granted. In contrast, a decree nisi does (see paragraph 27 above). The question has therefore been raised as to whether I can, and, if I can, whether I should, amend the decree nisi to reflect the amendment of the petition.

Ms Bazley and Ms Dunseath identify two possibly relevant powers referred to in the Family Procedure Rules 2010: first, the power under rule 29.16(1) (the ‘slip rule’) “at any time [to] correct an accidental slip or omission in a judgment or order”; and, secondly, the general power under rule 4.1(6) – which is in the same terms as CPR rule 3.1(7) – to “vary or revoke” an order.

This is not the occasion, nor is there any need for me, to explore the proper ambit of the ‘slip rule’. However far it may or may not extend, it does not, in my judgment, enable the decree nisi here to be amended in the way which is required. District Judge Steel may have been mistaken as to the true basis upon which the petition was, or, more accurately, should have been, proceeding, but the fact is that the decree nisi as drawn accurately reflected the basis upon which he believed he was proceeding and, more to the point, the basis upon which he intended to proceed – namely to grant the decree on the footing that the petition was brought under section 1(2)(d) of the Matrimonial Causes Act 1973. I decline, therefore, to make an order under the slip rule.

There is much authority, both in the family and more particularly in the civil jurisdictions, as to how and in what circumstances the powers under FPR 4.1(7) and CPR 3.1(7) should be exercised. Ms Bazley and Ms Dunseath have helpfully taken me to a number of well-known authorities, including Roult v North West Strategic Health Authority [2009] EWCA Civ 444, [2010] 1 WLR 487, Tibbles v SIG Plc (t/a Asphaltic Roofing Supplies) [2012] EWCA Civ 518, [2012] 1 WLR 2591, and Arif v Zar and anor [2012] EWCA Civ 986, [2012] WLR(D) 239. The present case is very far removed indeed from any of those cases and, indeed, from the other cases in which FPR 4.1(7) and CPR 3.1(7) have been considered.

I readily acknowledge that, despite the seemingly unrestricted language of the rule, the court does not have unlimited power and that, in many circumstances the proper way of challenging an order is by way of appeal. That said, however, it would be a denial of justice in the most unusual circumstances with which I am here faced if I were to refuse to exercise a power which, in my judgment, I plainly have. Quite apart from anything else, the matter comes before me, quite properly at first instance, at the behest of the Queen’s Proctor. How can justice properly be done if I decline to exercise my powers and send that part of the case off to the Court of Appeal – even assuming that anyone would be willing to bring an appeal. I have power under FPR rule 4.1(6) to make the order which is, in my judgment, necessary to bring the decree nisi into accord with the amended petition and the justice of the case.

I shall therefore order that the decree nisi granted by District Judge Steel on 21 November 2013 be varied by substituting for the words “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 words “held that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.” The following rubric will be added to the decree nisi: “Varied in accordance with FPR 2010 rule 4.1(6) with effect from 18 January 2017 by order of Sir James Munby dated 22 March 2019.”

At the outset of the hearing on 28 February 2019 I made an order pursuant to section 1(4) of the Judicial Proceedings (Regulation of Reports) Act 1926 permitting unrestricted reporting of the proceedings before me, subject only to a reporting restriction order (RRO) I made at the same time prohibiting, initially on a temporary basis, the identification of either M or P: see Rapisarda v Colladon [2014] EWFC 1406, [2015] 1 FLR 584, [2014] EMLR 26, paras 41-43, and Grasso v Naik and Bhatoo (Twenty One Irregular Divorces) [2017] EWHC 2789 (Fam), [2018] 1 FLR

Usually, in matters of divorce, the parties can expect to be named. After all, divorce goes to status and the public at large has an interest in knowing whether or not someone’s marriage has been dissolved and what that person’s status is. In the present case, in contrast, it seems to me that there is no public interest in knowing the identities of P and M, while there are at the same time powerful reasons why they should not be publicly identified. Put shortly:

The decrees have not been disturbed, so there has been no change in their status: contrast the outcome in cases such as Rapisarda v Colladon: Re 180 Irregular Divorces [2014] EWFC 35, [2015] 1 FLR 597, and Grasso v Naik and Bhatoo (Twenty One Irregular Divorces) [2017] EWHC 2789 (Fam), [2018] 1 FLR 753, where the decrees were set aside.

P and M are the innocent victims of failure by the court system: contrast again cases such as Rapisarda v Colladon and Grasso v Naik, where serious frauds had been practised on the court by the litigants or those representing them.

In order to argue their case, M, and more particularly P, have had to disclose personal matters in circumstances where the linking of those matters to named individuals would understandably cause them distress. Why should the price they have to pay to escape the adverse consequences of errors by the court include the additional burden of what they may well see as public embarrassment and even humiliation? This would surely be to add insult to injury.

What the public needs, and is entitled, to know, not least because what this judgment reveals are serious failings by the court and by judges, is how these problems arose and how the court has now decided to deal with them. That is why I have set out the history in such painful detail. The public, in order to understand this, does not need to know who P and M are.

As I have already mentioned, P sought and was refused exceptional funding by the Legal Aid Agency. This was because, as it was put in the decision letter dated 28 February 2019, her disposable income had been assessed at an amount which made her ineligible for legal aid. In her application for legal aid, she had set out her aggregate monthly income as £2,674.70, the relevant deductions as £2,233.57 and her disposable monthly income (aggregate income less such items as PAYE and NI, housing costs and various expenses) as £441.13. These figures were re-assessed by the Legal Aid Agency as, respectively, £2,694.13, £1,113.26 and £1,580.87. The

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.

Were I to cite all the cases in which similar comments have been made by judges in recent years, I fear that this already lengthy judgment would be unduly lengthened. I confine myself to a reference to what Williams J has very recently said in Re R (A Child: Appeal: Termination of Contact) [2019] EWHC 132 (Fam), para 13:

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.

In the circumstances the least I can do is to acknowledge with my thanks the professional dedication, commitment and sense of duty so conspicuously shown by Ms Budwal and Mr Nuttall of Messrs Duncan Lewis, and by Ms Bazley and Ms Dunseath. Too often in these circumstances the work of the solicitors, barely visible behind the scenes, is overlooked. P paid the firm a modest fee for their help in preparing her statement of 30 January 2019. But thereafter the firm worked for her pro bono Here it is important to record that, quite apart from all their work in instructing Ms Bazley and Ms Dunseath, Ms Budwal and Mr Nuttall worked pro bono in the fruitless attempt to obtain public funding.

There remain two final matters.

It is, of course, entirely a matter for him, but the President of the Family Division may wish to consider the extent to which the Guidance referred to in paragraphs 18-19 above needs to be reconsidered in the light of this judgment.

The circumstances as set out in this judgment surely serve to emphasise the pressing need to bring the online divorce project as soon as possible to a finality where it is fully operational. I understand that very considerable strides have been made since I issued the Guidance in April 2018 – and, I should make clear, made very successfully – but there is still some way to go.

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.

I am assured by HMCTS that the gremlins have all been identified and removed and that the software now in use on the online divorce system makes it impossible, if one uses the online system, to file a petition in the circumstances referred to in the Guidance and in this judgment. This is very welcome news, not least because it demonstrates how the introduction of modern digital technology – a vital part of the current court modernisation process – can not merely speed up but also improve the administration of justice.