Legal Clarity Sought in Divorce Portal Error

High Court Addresses Divorce Portal Error

On 19 December 2024, the High Court, Family Division, delivered a significant ruling in a case involving 79 divorced couples whose divorce applications were filed prematurely due to a system error in the HMCTS divorce portal. The judgment, handed down by Sir Andrew McFarlane, President of the Family Division, and Her Honour Lynn Roberts, addressed the legal status of these divorces.

The case arose from an application by the Lord Chancellor under section 55(1)(c) of the Family Law Act 1986, seeking declarations that the marriages of these couples no longer subsisted on the date of their respective final divorce orders. The error, discovered in November 2022, allowed divorce applications to be submitted a day early, breaching the statutory requirement that applications could not be made before the expiration of one year from the date of marriage.

The court was tasked with determining whether the final divorce orders were void or voidable. The Lord Chancellor, represented by Sir James Eadie KC, argued that the orders should be considered voidable, allowing the court discretion to uphold them despite the procedural error.

The judgment referenced significant legal principles, including the House of Lords' decision in R v Soneji and the Supreme Court's ruling in R (Majera) v Secretary of State for the Home Department, which emphasised the importance of discerning Parliament's intention regarding the consequences of statutory non-compliance.

The court concluded that the 79 final divorce orders were voidable, not void, thus allowing the possibility of upholding them to avoid potential harm to the parties involved. This decision considered the potential consequences of treating the orders as void, such as the invalidation of subsequent marriages and financial arrangements.

The court's decision reflects a pragmatic approach to statutory interpretation, prioritising the public interest in maintaining legal certainty and protecting the rights of innocent third parties. The ruling underscores the importance of judicial discretion in addressing procedural errors that could otherwise lead to significant disruption.

The court has given the respondents until the end of January 2025 to indicate if they wish to contest the voidability of their divorce orders. If no objections are raised, the court will proceed to make the declarations sought by the Lord Chancellor.

Learn More

For more information on family law and divorce proceedings, see BeCivil's guide to UK Family Law.