Nearly 100 estranged couples have been plunged into divorce chaos today after a major courts blunder, the Mirror can reveal.
The HM Courts and Tribunal Service have issued 94 divorce applications which should have been rejected because they were made one day early. There have been 79 final divorce orders made that may now be legally unsound and it is feared some divorcees could have gone on to remarry.
An HM Courts and Tribunal Service spokesperson told us: “We are aware of a historic technical fault in the online divorce service, which temporarily allowed a small number of couples to apply for divorce a day before the legal limit."
Karen Dovaston, founder of Dovaston Law and Chair of The Law Society’s Family Law Committee, told us: “Something has gone seriously wrong here and this error will have a significant impact on some of the couples affected. Divorces can be extremely distressing at the best of times and this will add a great deal of confusion and worry to the situation. The effect will depend on how far through the divorce process the couple is, what orders have been made by the court and whether those orders have been implemented.”
Have you been affected by this story? Email nick.sommerlad@mirror.co.uk.
Estranged couples are not allowed to apply for a divorce until the day after their first wedding anniversary. But the 94 online applications which were made 24hrs early - on the first wedding anniversary - and processed in due to a technical glitch. Those affected are being contacted by the courts today. The HMCTS spokesperson added: "The error was fixed as soon as it came to light. Any court orders, including divorce orders, remain in place unless they are specifically overturned by the courts, and all those potentially affected are being contacted and offered dedicated support and guidance.”
The glitch on the citizens' portal for those divorcing without a lawyer meant that for six months, from April to November 2022, people could apply one day early. We understand the issue arose when systems were updated when new laws on no fault divorces came into force. There were 69 cases affected by the technical error - just 0.1% of the total number of applications over the period - and 67 of those have resulted in a final divorce order.
The bug was fixed in November 2022 but no review of the possible impact took place, we understand, until recently when the error on one of the 69 cases was spotted. For nearly two years the applications went through the divorce process with separate three stages where the error of the date of application was not flagged up.
The urgent HMCTS review found a separate problem with the other solicitor portal used by divorce lawyers. There was no time restriction placed on this service to allow solicitors to upload paperwork early and officials have identified another 21 cases where these were filed a day early, some as recently as this year.
The Mirror has been told that another four cases with the same problem have been found, all due to human error, but only one has resulted in a final divorce notice. The 79 divorced couples who are learning today of the error in their application will have to wait for the Judicial Service to decide if their final orders are void or not.
The other 15 couples, who are still in the process of getting divorced, will have their cases “held back” so no final order is made until judges rule on the other cases. Karen Dovaston said that couples at the earlier stages of divorce, including those who have had a conditional divorce order, previously known as a decree nisi, will not be so severely impacted, beyond a delay and possible additional paperwork. But those who have received final divorce orders, also known as a decree absolute, could have bigger problems.
She added: "This is the point at which financial remedy orders can come into effect. Those who have gone past this point could find themselves with a series of problems. Their pensions may have been split, there may be capital gains tax issues arising from the sale of assets, there may even be people who have remarried.”
In a 1968 case, the Court of Appeal held that an honest and reasonable belief that the previous marriage had been dissolved is a defence to a charge of bigamy. A source told the Mirror that no cases of divorcees remarrying had been identified but with some couples divorced for well over a year that risk cannot be eliminated.
How blunder affects divorcing couples
Solicitor Karen Dovaston, founder of Dovaston Law and Chair of The Law Society’s Family Law Committee, explains the divorce process and the possible impact of this blunder:
You can apply for a divorce only after the "expiration of the period of one year from the date of the marriage" and that has been the situation since the passing of the Matrimonial Causes Act 1973.
That means that the earliest date a spouse can apply for a divorce is on the day after their first wedding anniversary.
You can have a solicitor act for you and apply for a divorce or you can apply yourself, in which case you are called a litigant in person.
I would not expect experienced solicitors to make such a basic error as applying for a divorce one day too early and within the digital divorce portal, these applications should be automatically rejected.
There are also two ways you can apply. Most people apply online but some still prefer to submit a paper application. Paper applications are checked by court administration staff.
Either way, after the application is made – and this is called the application date - within two or three weeks the court will issue the application - and this is called the issue date.
A pack of papers with the divorce application and reply form will then be sent by the court to the respondent or, if it is a joint application for a divorce, to both parties.
The process has changed and become more digitised in recent years. Most people are using the digital system.
For divorce applications since April 6 2022, the soonest you can get divorced from the issue date is 26 weeks and one day – and that is without building in the court delay and processing time. Realistically, it would take around 7 to 8 months.
After you have made your divorce application and it has been issued, it is then 20 weeks before you can apply for the next stage of the divorce, which is a conditional divorce order.
You are still married at that point but the conditional divorce order opens up the court’s jurisdiction to make financial orders. For the couples still at this point then it should be easier to deal with.
The earliest you can apply for the final divorce order is six weeks and a day after the conditional divorce order. This is the point at which financial remedy orders can come into effect.
There was a 1990 case where something similar happened. The divorce orders were set aside and the subsequent remarriage of one of the parties was declared to be not legally valid.
Sometimes these mistakes can be remedied but the issue in this situation is that the law in force made by Parliament dictates that an application for a divorce can only be made after one year of marriage.
This is effectively an absolute bar on a divorce being applied for before that point in time. In other words, the court does not have the jurisdiction or power to make the order. Any divorce orders could be said to be void and therefore treated as if they had not happened.
The Ministry of Justice should be raising this with the King’s Proctor, who is a type of lawyer who represents the government in cases involving family matters.
When similar issues arose in 2018, the President of the Family Division, who is the most senior family law judge for England and Wales, issued guidance on what needs to be done should the situation arise where divorce applications are not compliant with the law.
This was pre April 2022 and over a no fault divorce but the issue over applying for a divorce within a year of marriage still remains live.
