England & Wales have been hit with some alarming news this week: that there are a number of cases where the courts have allowed for divorces to be finalised, which are actually null and void (invalid) due to divorce petition issues. The warning has come from the President of the High Court, Sir James Munby, who has notified the public that divorce petitions which may have been presented before one year of marriage, or without the correct separation period will not be validated.
In England & Wales a couple needs to be married for at least one year from the date of marriage before either party can issue a petition for divorce. The law in Jersey differs, whereby there is a three year bar before a petition to divorce can be brought before the court.
Where petitions have been brought in England & Wales, not allowing for the correct separation period before presenting it to the Court, again these will be invalid. In England & Wales, where there is consent to divorce, the parties need to be separated for a period of two years before a petition may be presented. In the event of no consent by the respondent party, a period of five years separation must be present before a petition may be brought before the court. Again, the law in Jersey differs, as there is only one year separation required if the respondent party consents to the divorce. Where there is no consent, a period of two years separation is required.
It is understood that such errors can have heavy consequences for those who come under this unfortunate umbrella. If a divorce is null or void, and a person has re-married, the latter marriage will not be legalised, and can create further issues in relation to bigamy.
There has been speculation and warnings for those whose divorces may have been affected, that any financial settlements could be called into question. Whether the argument that the parties intended to be bound by such terms, irrespective of this issue, has not yet been commented on.
At the time of writing this article, it is unclear whether Jersey has been affected by similar divorce petition issues. It is important for those who are considering representing themselves in their own divorce proceedings to consider getting legal representation.
The courts in Jersey are very comprehensive, however, should there be a couple who are both litigant in persons, it could potentially create an issue for the Court if they are not aware of the proper protocols and procedures.
For example, the separation period could catch out litigant in persons, where they believe they are presenting a petition on the basis of one or two years’ separation, when in fact there could be an error with the dates.
The concern for this could become more of a realisation once the new legal aid guidelines come into force in the near future, as there may be a surge in those who choose to represent themselves. Given the complexity of divorce proceedings, we would suggest that obtaining legal representation is the safest way forward to avoid any potential consequences in a divorce being null and void.
Author: Stephanie Devine
Parslows Jersey can help
The breakdown of human relationships can cause great stress, anxiety and problems. The process of separation and divorce is rarely easy.
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