SL v SM

This matter was listed before me on the 30 April 2026 for half a day to consider, either for determination or further directions, two issues that had arisen in Ms L’s application for a divorce from Mr M. (I shall refer to Ms L as the wife and Mr M as the husband.) Those issues, both advanced by the husband, are:

Further, the husband had brought an application on the 18 February 2026 for three things:

Both parties represented themselves. The hearing took place remotely on Teams with both parties joining the link by telephone. The hearing proceeded by way of submissions from the husband on a point and then a response from the wife on that point, in both cases with questions being put by me. Both parties gave an affirmation that they would tell the truth at the beginning of the hearing.

The wife’s application for divorce was made on the 12 December 2023. On any view these proceedings have taken far too long to get this far. On any view matters will not be resolved today. That will be a matter of distress to the wife.

I shall set out some general background to the marriage and separation, and a brief account of these proceedings. I make clear that what follows as background is summary only. It is a feature of these proceedings that the husband makes frequent applications to the court. I believe that my clerk has received two emails from him as this judgment was written (now three), and I note HHJ Simmonds has made orders to restrict the husband’s communication with the online divorce portal.

The wife is aged 42. The husband is aged 75. They married on the wife’s 16^th birthday in Glasgow, the 31^st August 1999.

Prior to their marriage there had been proceedings involving the wife in this jurisdiction. I do not have a clear account of the precise ambit of those proceedings. There appear to have been wardship proceedings, care proceedings and potential criminal proceedings arising from the wife’s relationship with the husband. The parties agree that the wife was at that stage diagnosed with a mental health condition known as de Clerambault’s syndrome. The wife says that diagnosis has subsequently been considered wrong; the husband disagrees with that. The parties also agree that the wife was considered unable to give evidence against the husband in criminal proceedings, by Mr Justice Hedley. Further the parties agree that shortly before the 31 August 1999 Mr Justice Hedley, presumably aware of a plan for the parties to marry in Scotland when the wife turned 16, considered whether or not the wife had capacity to marry and decided that she did, and considered whether or not there should be an injunction prohibiting her from travelling to Scotland, and did not make one.

Following their marriage the parties had 7 children. There were care orders made in relation to these children. The husband’s case is that the care orders were made, among other things, because of the wife’s mental ill health. The wife’s case is that they were made because the husband would from time to time tell the local authority that she had poor mental health, when in truth she did not.

By about 2016 (though I have had different dates) the wife had formed a relationship with another man, CD. She separated from the husband and has lived with Mr D from about that time. She has had 5 children with Mr D. They, she tells me, have not been taken into care, but her care of them has been subject to local authority scrutiny given that her other children were taken into care. She tells me that the local authority were particularly concerned that she might return to live with the husband.

She remains living with, and in a relationship with, Mr D.

In December 2023 she made an application for divorce to the online portal, relying on the sole ground that the marriage had irretrievably broken down. The husband tried to resist the application both by an acknowledgment of service indicating that he intended to defend it, and, he relates, an answer. It appears that his answer was lost.

In August 2024 the wife applied for a conditional order of divorce. She received a certificate of entitlement on the 20 September 2024.

The parties were advised that a conditional order would be considered in the Birmingham County Court on the 8 October 2024. The husband filed a D11 with an application to file an answer out of time in advance of the hearing on the 8 October 2024. That application does not appear to have been before DJ Bains in Birmingham on the 8 October 2024. DJ Bains made a conditional order for divorce.

On the 12 November 2024 the husband filed at the online portal an application to set aside the conditional order and to file an answer out of time.

On the 4 December 2024 DDJ Stuart, on reading the husband’s application made a direction that the matter should be listed at the parties’ local county court for a case management hearing.

On the 20 January 2025 DJ Cronshaw at the local court set aside the conditional order and accepted the answer filed by the husband. That answer has four points:

On the 29 January 2025 DJ Cronshaw transferred the matter to me, as a High Court Judge, in the light of the point being taken that Part 7 is incompatible with the Human Rights Act.

Thereafter delays occurred while I have had charge of the case. All the hearings before me have been remote.

On the 15 May 2025 the matter was first listed before me. That hearing was not properly effective. The wife related she had not been informed of the date of the hearing. She attended when chased by the court staff but was not able to attend for long. She agreed to provide a letter from her GP setting out whether or not she had mental health problems. The husband was in attendance at that hearing.

The matter was listed again on the 31 July 2025. It had to be adjourned by the court for logistical reasons.

The matter was relisted on the 3 October 2025. The wife provided a position statement in advance of the hearing (as did the husband) but she did not attend the hearing. She had provided a letter from her GP to the court but had wanted it redacted as to her address and the GP’s name and address before it was sent to the husband. (The contents of the letter will be considered further below but in general terms it said she could make an informed decision about whether or not she wanted to divorce her husband.) The court had redacted the letter and the husband has received a redacted copy of the letter. The wife communicated with the court by email before the end of the hearing apologising for her absence and saying she could not attend because of another appointment. The wife had not filed a statement of evidence as I had directed in May. The husband again attended the hearing. He had filed a statement of evidence in which he questioned the appropriateness of the direction that I had given in that I had asked him to address in the statement a mixture of fact and law. Further directions were made in the wife’s absence for assembling the necessary evidence and the matter was relisted on the 2 December 2025 with a warning that if the wife did not attend her application would be dismissed.

The hearing on the 2 December 2025 was then adjourned on the husband’s request because he needed to attend a medical appointment.

The matter was relisted on the 28 January 2026. Both parties were able to attend. On that occasion I granted an application by the husband that the wife’s relevant mental capacity should be assessed by a psychiatrist instructed as a single joint expert. That was resisted by the wife who said she would prefer the husband to see the letter from her GP without redaction. The husband agreed to pay for the report and a tight timetable was struck so as to prevent further delay.

On the 10 February 2026 I was sent an (unissued) application by the husband for more time to comply with my order to enable the instruction of a psychiatrist because he wanted to apply for legal aid to enable him to instruct the psychiatrist. The wife wrote to resist that application saying that this was just a delaying tactic on the husband’s part and reminding me that she was prepared to allow him to see an unredacted copy of the GP’s letter. For reasons set out in my written determination of the 17 February 2025 I was not prepared to allow the extension of time that the husband was seeking but afforded him an extra 10 or 7 days for the various steps that needed to be taken to allow the instruction of the psychiatrist. Further, I made provision that if there was not compliance in that time I would send out an unredacted letter from the wife’s GP and consider at this hearing issues as to her capacity and issues as to incompatibility of Part 7 of the Family Procedure Rules and the Human Rights Act.

There was not compliance with my revised timetable and so the unredacted GP’s letter was sent out.

The wife accepts that she was considered to have mental health problems when she was young. She believes that during her relationship with the husband he would try and control her by saying to others that she had poor mental health. Since separating from him she has not had mental health problems. She can rely on the presumption of capacity set out in section 1 of the Mental Health Act 2005. Further she relies on the letter from her GP dated the 2 June 2025 which sets out that following a consultation she ‘displays no signs / symptoms of a mental health problem’, and she ‘is of a sound mind and is able to make an informed decision whether or not she wants to divorce her husband’. (I record that she told me she had now moved and has a different GP.)

The husband’s case is that de Clerambault’s syndrome is a lifelong condition. He says that the wife’s diagnosis of suffering from that rebuts the presumption of capacity. He says that I am bound by findings of Hedley J that the wife lacks capacity. He says that I cannot attach weight to the letter from the GP: he has not been instructed as an expert, mental capacity is not his expertise; he has not attended to be cross-examined. He tells me that the wife has changed her mind during the divorce process and sent him 100s of emails wanting to restart their relationship.

The wife does accept that after a period in hospital she did send some emails to try and put things between her and the husband on better terms. The husband wanted her to drop the divorce. She told him that she had been told that if she did not progress the divorce the application would lapse; she denies that she said she would stop it. I have seen an email which does talk about the application lapsing. She says these were just wavering second thoughts on her part and after a while she resolved to press on with the divorce.

I have now had the advantage of two hearings in which I have heard extensively from the wife and the advantage of reading a statement and a position statement prepared by her. She has been clear at all of the hearings before me that she wants a divorce. She has explained to me why she wants a divorce: she does not want the husband to refer to her as his wife and she does not want to be his wife. She is aware that she would have a financial claim against him on a divorce but tells me that she does not want any of his money. She tells me that she has discussed the divorce with her partner, Mr D, and he has said that she should not bother with continuing to pursue one because it will not make much difference because they live together at any rate.

Her understanding of the consequences of a divorce I find at least as good as an ordinary persons. She does not present with any difficulty understanding the relevant information, retaining the information, using or weighing the information or communicating the information. She has missed a court appointment. She does appear to have had second thoughts about the divorce having initiated it. Neither suggest she does not have capacity to make the decision to divorce.

I accept that the evidence from the GP is hearsay evidence, and is not before the court as expert evidence. I do consider however that I can rely on it as hearsay evidence on an issue of fact: namely that her GP was not aware that she suffered from mental ill health. I do not consider that I am bound by a historic diagnosis of de Clerambault’s syndrome to consider that the wife is incapacitous. I do not consider that I am bound by a decision of Hedley J to hold that the wife is incapacitous. I note that he determined that she had the capacity to marry when she was just under 16. It strikes me that the capacity to divorce is obviously comparable to the capacity to marry.

The husband criticises me for not taking steps to call up the past papers in relation to the proceedings before Hedley J in 1999 and subsequent care proceedings. It is his case those papers would reveal the extent of the wife’s mental health difficulties. I reject that criticism. It is not appropriate for me to trawl through the wife’s life when I have the opportunity of hearing from her and the reassurance of the letter from her GP.

I have no doubt in finding that she has capacity to decide she wants a divorce. Insofar as determining whether or not she has capacity to conduct these proceedings I can see no reason in her conduct or her interactions with me to assert she has any less capacity than any other litigant in person and, indeed, she has shown admirable persistence to date.

I note that I may not make a declaration of incompatibility without giving the Crown advance notice of my intention to do so. What I shall do here is consider whether any of the complaints that the husband raises are such that I should notify the Crown that I am considering such a declaration.

I will endeavour to work through the complaints as the husband presented them to me at the hearing.

He has not received a copy of the wife’s D8. The D8 is the initiating application which starts the proceedings through the online divorce portal. The failure to give him a copy, he says, is a problem because he believes that Mr D might have made this application and he has had no opportunity to verify that the wife has signed the D8.

My attention is also drawn to FPR 5.7 (1) which says that any communication between a party and the court must be disclosed to the other party and if in writing (whether in paper or electronic format) copied to the other party.

I do consider that it is appropriate and in the interests of a fair trial that documents from one party to the court (and here the portal is the court) are in general terms copied to other litigants. (There can of course be exceptions, for example, in relation to without notice proceedings and justifiable concealing of an address.) What I suspect has happened here however is that the D8 is not an old-fashioned form which is filled in and filed, but a series of online questions and the husband has in fact received copies of the answers that the wife has completed. (The exception to this is that the wife asked that her address be kept from him and so it was.) There is, in the old-fashioned sense, no form to be copied only answers to questions and those have been copied.

If I am wrong, and there is a form that he has not been sent, then I consider this is an administrative complaint about the management of the portal, not a reason to say that FPR part 7 is incompatible with the Human Rights Act.

If I am right and there is no old-fashioned form, then what has happened in this case indicates that there is no incompatibility with the Human Rights Act. In the light of the husband’s objections to the divorce the proceedings came out of the online system. There have then been repeated hearings at which the wife has attended and argued that she should have a divorce. That answers the point as to whether or not she wants a divorce.

The husband makes a further objection related to the D8, namely that the wife did not disclose on it that there had been proceedings in relation to this marriage before Hedley J. That is not a point that goes to incompatibility (and it is a point that indicates that he has seen the content of that form). The proceedings before Hedley J preceded the marriage, but did relate to the formation of the marriage. This is a point that he can (as he has) draw to the court’s attention. It does not render the procedure incompatible with the Human Rights Act 1998.

HMCTS refused to provide the husband with copies of the wife’s emails seeking to withdraw the application. The wife denies that she wrote such emails. She related that she told the husband that if she did not complete the next stage of the divorce process within a certain time period the application would simply lapse. I have not engaged in (or had the ability to engage in) a trawl through the emails between the parties and the online portal. I do consider that FPR 5.7 (1), as referred to above, accords with one of the general principles of a fair trial, namely, that save for good reason there should not be communications between one side and the court which are not shown to the other side. So, if the husband had been denied copies of emails from the wife to the online portal (save for good reason such as redacting contact details) then I consider this a justifiable complaint, what it is not, however is a marker that Part 7 of the Family Procedure Rules is incompatible with the Human Rights Act. If it occurred it is an administrative error. Further, I do not consider it an error which will have an impact on the facts of this case. Should the wife have written such emails they would not suggest that she should not be entitled to a divorce.

HMCTS sent notifications to him by email without his consent. The husband says the wife had indicated that he was prepared to communicate with HMCTS by email when he was not. I do not see how notification by email – which the husband clearly receives - can be in breach of the Human Rights Act.

HMCTS failed to provide a copy of the wife’s application for a conditional order. This should be analysed in the same way as the D8 complaint above. I anticipate that what the husband received was the answers to online questions, and there is no old-fashioned form to be sent to him.

Abuse of Part 7 Application for ulterior motive. The husband says that the wife is wanting to use the divorce proceedings to demonstrate that he was the cause of their children being taken into care. That he says is an improper ulterior motive. This is an unsustainable argument. It only arises because the wife explained to the court why she considered her relationship with the husband broke down. It would not have come into these proceedings had there not been an issue raised by him as to capacity. All that the divorce will show is that the marriage has irretrievably broken down.

Husband’s religious belief prevents him accepting irretrievable breakdown. This is not a criticism of the procedure it is a criticism of the Matrimonial Causes Act 1973. It is obviously open to Parliament to make provision for divorce.

In the light of the above considerations I conclude that none of the criticisms that the husband makes of part 7 of the Family Procedure Rules amount to points of incompatibility with the Human Rights Act. I need not notify the Crown of an intention to make a declaration of incompatibility.

The husband has asked for permission to appeal my decision of the 17 February 2026. He says it was unfair of me to not afford him more time to get legal aid to instruct a psychiatrist. I explained the reasons for my decision in the written determination I sent out at the time. I continue to consider those reasons good reasons and so will deny permission to appeal that decision.

The husband wants me to give him permission to issue a nullity petition on the basis of section 12(1)(d) of the Matrimonial Causes Act 1973 in that at the time of the marriage the wife was suffering from a mental disorder of such a kind or such an extent as to be unfitted for marriage. Any such application would need to be brought within 3 years of the marriage by section 13(2) unless I were to give leave. The wife opposes me giving leave. In circumstances where the marriage was in 1999 and there were 7 children born of the marriage and the issue as to whether or not the marriage should take place was considered by a High Court Judge before it took place, I consider it would be manifestly wrong for me to give leave to bring such a petition.

The husband wants me to stay these proceedings to allow for mediation and to enable an application to be made for legal aid. The wife says that is just an attempt to delay matters. She indicated that she was prepared to have it recorded on an order that she did not intend to make a claim for financial relief if the husband agreed to the divorce proceeding. The husband was not prepared to proceed on that basis. I do consider, in the light of the applications made to date, and his assertion to me during the hearing that he still loves the wife and he would want the marriage to continue, that the wife is right when she asserts that she thinks the husband is just trying to put off a divorce. So I shall not adjourn the matter for mediation.

By the above judgment I have dealt with three of the four points in the husband’s answer to the wife’s application for a divorce. He had said (i) the wife is a protected person and (ii) HMCTS refuse to refer her mental illness to judge – I have found that she has capacity. He had said (iii) that Part 7 (of the Family Procedure Rules) is not compatible with the Human Rights Act 1998 – I have rejected that. There remains one point. To set that out in full he says,

This is wrong as a matter of fact and law. As set out above, by the parties’ agreed account, the most that the English Court can be said to have done is to have taken no steps to prevent the marriage in Scotland. And as a matter of law the English Court’s jurisdiction to divorce parties is not restricted by any consideration as to where the marriage took place.

I will draw an order rejecting the husband’s applications that the wife does not have capacity to decide that she wants a divorce or capacity to bring these proceedings and that the Family Procedure Rules Part 7 are incompatible with the Human Rights Act 1998 and will transfer this matter to HHJ Simmonds, who is the lead judge for divorce, to make such directions as he sees fit for the prompt progression of this case.

My clerk has received an email from the husband as this judgment is written to dispute the wife’s account that she would have been told that if she took no action her divorce would lapse. He says the application would just sit on the file. I am not going to consider this point any further. It may be that he is right. It may be that the wife has got things wrong. The husband says that this might be evidence that HMCTS were bullying the wife to divorce him. That I consider outlandish.

My clerk has received a further email from the husband as this judgment was being written suggesting that the wife’s doctor is not registered to practice as a GP. The evidence has now closed. If he wishes to make an application to adduce fresh evidence on this point he must do so by way of application on notice to the wife, explaining why he only undertook his research after the hearing. I will hold off drawing an order for 7 days to allow an application to be made.

My clerk has received a further email asking if, given the wife’s address has not been disclosed to him and there is a duty on both parties to negotiate and compromise the issues between them he can use HMCTS as a conduit for offers. I had previously indicated that open offers could be emailed to my clerk and they would be forwarded to the wife. He now asks that the court could pass on sealed envelopes containing without prejudice offers. The court not only does not have the facilities to deal with this but it is not appropriate to be sending without prejudice offers through the court.

My clerk has received many further emails since the draft judgment has been sent out from the husband. They do not as requested deal with typographical errors. I shall not deal with them here. Should he wish to make an application to appeal this decision then he may do so once I hand down this judgment.

The husband says that I must anonymise this judgment because I refer in it to proceedings which are confidential – care proceedings in relation to the parties children and the proceedings in relation to the wife before she was 16. Further, he reminds me, there are restrictions on what can be reported from divorce proceedings.

The wife has said that if the judgment needs to be published without anonymisation then so be it. She says there are no ongoing care proceedings.

In the circumstances of this case I do not consider that it would be a good use of judicial time to provide for an argument and then a reasoned decision on anonymisation. I therefore take the view that I will anonymise this judgment before publishing it on the National Archives.