The high court in England grappled with the situation where 79 divorce order had been obtained despite a breach of their statute law which requires that “an application for a divorce order may not be made before the expiration of the period of one year from the date of the marriage”. Seventy nine couples, apparently keen to be divorced, applied on the last day of the year. In English law the “period of one year” means one year and one day. The applications for divorce was therefore made one day early.
The legal question raised was whether, by reason of the breach of the law, the divorces were void or voidable. If they were void, those who thought they were divorced in fact remained married. This presented numerous issues especially for couples who had remarried, reorganised their financial circumstances, or divorced in situations, for instance, of gender-based violence.
In the absence of express provision in a statute, the central question to be answered by the court is what the intention of the legislature is as to consequences of non-compliance. The court found that it was inconceivable that the UK parliament would have intended that the consequences of submitting an application for divorce one day early which, by administrative/computer error was processed to a final order of divorce being granted, would be that that final order must automatically be set aside as void and having no legal standing. This would do damage to the public interest in achieving clarity and legal certainty as the marital status of a citizen following the making of an apparently valid final order of divorce. The status of children would also be put in doubt. These policy issues drove the court to hold that non-compliance rendered the divorce order voidable rather than void.
Even this conclusion by the court is unsatisfactory. Notionally, one of the parties to a voidable divorce could challenge the divorce and seek to have it set aside. Presumably they would have to have persuasive reasons to convince a court not to uphold the divorce. The discretion of the court would normally be exercised to conclude that the divorce was final.
This case is mentioned to illustrate how legislation cannot foresee all real issues and has no direct significance for South African law relating, as it does, to a specific UK statute. The South African principles of whether breach of a statute creates a void or voidable status are similar.
[The Lord Chancellor and 79 Divorced Couples [2024] EWHC 3211 (Fam)]