A procedure beyond divorce
When the new divorce reform legislation – the Divorce, Dissolution and Separation Bill – comes into operation, a challenge for our family law reformers will be how they deal with nullity (Matrimonial Causes Act 1973 (MCA 1973), ss 11 and 12) and declarations of marital status (Family Law Act 1996, s 55).
It is a fact that as the bill now stands there is only one justiciable matter on divorce. That is there is only one job left for a family courts judge to do, namely (under the proposed MCA 1973, s 1(8)) a question may arise as to whether parties will be permitted to ‘shorten the period that would otherwise be applicable for the purposes of’ newly amended Act. Can twenty weeks to conditional order (decree nisi) and final order (decree absolute) be shortened?
If your marriage is not conventional under Marriage Act 1949, divorce may not be a simple question – procedurally – of asserting (not even proving, as far as I can see) irretrievable break down. Then a variety of options open up for the unfortunate spouse or spouses. How will the rule-makers deal with this? Recent law reports have given them a miscellany of cases which illustrate the types of issue they will have to deal with. First I will summarise the reports and then look at how they may need to be considered under rules made under the new Act.
Recent case law: status and nullity
HM Attorney General v Akhter & anor  EWCA Civ 122 (14 February 2020) cleared the air in one way; but it creates a variety of problems for those affected by the decision. The Court of Appeal allowed an appeal by the Attorney-General against a decision of Williams J that Ms Akhter and Mr Khan had a marriage he could annul (certain requirements of marriage had not been followed: MCA 1973, s 11(a)(iii)). Under Williams J’s order Ms Akhtar would have retained the right to seek financial relief from Mr Khan under MCA, ss 23, 24, 24A and 25A. No said the Court of Appeal. She had a non-qualifying ceremony which could not be annulled. She was no more than a cohabitant with any rights – such as they are – to which a cohabitant may be entitled.
In MM v NA (Declaration as to Marital Status)  EWHC 93 (Fam) (22 January 2020), Roberts J was able to declare a couple married where they had been married in Swaziland. Could Swaziland itself be recognised Roberts J had to consider; if so was this marriage entitled to recognition. The answer to both of these questions was yes; and therefor the couple were entitled to a declaration. This couple were not seeking dissolution. Recognition lead to other rights to which they were entitled in English law.
Padero-Mernagh v Mernagh (Divorce: Nullity: Remote Hearing)  EWFC 27 (3 April 2020), it could be said, had a number of marriage breakdown issues. Mr Mernagh (M), a solicitor from Huddersfield, had a ceremony of marriage with Ms Padero-Mernagh (PM). They had two children. Twenty years later PM left M. When it came to divorce proceedings on her petition, M alleged that PM was already married in the Philipines, where she came from. She said not. Williams J held she was married. He annulled her marriage to M on the ground of bigamy (she was already ‘lawfully married’: MCA 1973, s 11(b)); so she retained the ability to seek financial relief under MCA 1973, ss 23-24A and 25A.
Service of the application
Under the present procedure a petitioner – the applicant for a divorce – must show the court that the respondent (the other spouse) has received the petition. The respondent can say, amongst other things, whether he wants to defend the divorce or whether he and the petitioner were married at all. As the bill now stands (Clause 1 of the bill amends MCA 1973, s 1, and that clause is quoted here as the amended law) a spouse ‘may apply to the court for an order (a “divorce order”) which dissolves the marriage on the ground that the marriage has broken down irretrievably’ (section 1(1)). The application ‘must be accompanied by a statement by the applicant or applicants that the marriage has broken down irretrievably’ (section 1(2)); and the statement of irretrievable breakdown must be taken ‘to be conclusive evidence that the marriage has broken down irretrievably, and make a divorce order’. There is no room for a respondent spouse to contest the assertion of irretrievable breakdown.
This says nothing about service. That is of concern to some reformers. On the face of it there is therefore no provision for a reply by the non-applicant spouse in which the types of matters raised in the three cases above can be drawn to the court’s attention. A result of this may be that a marriage is dissolved under the new section 1 where there was no marriage; or at least that there is a marriage which was void or voidable under MCA 1973, ss 11 or 12.
Sections 11 and 12 will remain in amended form under the 1973 Act and nullity, as now, will still be a part of the new dissolution scheme. It remains to be seen how this and the more complex aspects of marital status (under Family Law Act 1986, s 55) are woven into the new procedural scheme. These issues – nullity and marital status – imply complex juridical involvement. They give rise to persistent, and complex litigation (the Queen's Proctor was called in in Padero-Mernagh; and the Attorney-General was actually the appellant in Akhtar).
The new divorce scheme will involve almost no judicial involvement. The increasing numbers of marriages which may or may not be qualifying ceremonies, in our modern heterogeneous society, will give rise to a steady flow of complex marital litigation.