Graeme Smith warns of the dangers of undue haste in terminating unhappy marriages


'Tomorrow, tomorrow... it's only a day away', as the song goes. However, there are circumstances where 'only a day' can make a huge difference. Many husbands and wives are anxious to terminate unhappy marriages at the earliest opportunity. But there are traps waiting, which mean that those acting 'only a day' early may find their petition dismissed.



The first trap is to be found in section 3(1) of the Matrimonial Causes Act 1973 (MCA), which provides that 'no petition for divorce shall be presented to the court before the expiration of the period of one year from the date of the marriage'. This is frequently interpreted, both by represented and unrepresented parties, as meaning that the petition can be presented on the first anniversary of the marriage. However, this is wrong, and the day of the marriage must be excluded from the calculation of the period of one year.



The courts have consistently interpreted statutes and contracts in this way, as far back as Young v Higgon (1840) 6 M&W 49. A more recent case is that of Zoan v Rouamba [2000] 2 All ER 620, in which the Court of Appeal was dealing with 'credit hire' arguments under the Consumer Credit (Exempt Agreements) Order 1989. In paragraph 23 of his judgment, Lord Justice Chadwick stated: 'Where the period within which the act is to be done is expressed to be a number of days, months or years from or after a specified day, the courts have held, consistently since Young v Higgon, that the specified day is to be excluded from the period; that is to say, that the period commences on the day after the specified day.'



He contrasted this, in paragraph 29, with a period which begins 'with' a specified day, in which case the courts have held 'with equal consistency over the past 40 years or thereabouts, that the legislature... has shown a clear intention that the specified day must be included in the period'.



It might be thought that this provision is somewhat onerous, and that a court should 'turn a blind eye' to petitions presented one day early. However, the provision is clear, and any decree pronounced would be a nullity which could subsequently be set aside. In Butler v Butler (Queen's Proctor Intervening) [1990] FCR 336, a petition for judicial separation which had been properly presented within a year of marriage was then amended to seek divorce. The amendment was made after the first anniversary of the marriage. In due course a decree absolute was obtained.



The problem came to light as a result of statistical returns from the county court, and the Queen's Proctor sought a declaration that the decree was null and void. The then President of the Family Division, Sir Stephen Brown, described the matter as 'a most unfortunate situation' and held that the decree was rendered void by statute because the only petition had been presented before the expiration of one year from the date of the marriage.



The second trap applies to petitions based on desertion or living apart for two or five years, pursuant to sections 1(2)(c), (d) or (e) of the MCA. In each case, the period of time in question must be 'immediately preceding the presentation of the petition'. It is therefore quite clear that the date when the petition is presented cannot form part of the period. However, the court has also held that the day of separation (or desertion) must be excluded from the calculation of the period.



In Warr v Warr [1975] Fam 25, [1975] 1 All ER 85, Mr and Mrs Warr separated on 6 February 1972. Mrs Warr presented her petition on 6 February 1974. At the request of the judge, the Queen's Proctor intervened. Having reviewed earlier authorities, Mr Justice Buckley held that the day of the separation had to be excluded when computing the time period in question, and accordingly Mrs Warr failed to establish the necessary period of separation. The petition was dismissed.



Both of these traps involve a period of time before 'presentation' of the petition, rather than signing, issue or service of the petition. The time of presentation of a petition is dealt with in rule 2.6(5) of the Family Proceedings Rules 1991 (FPR), which provides that 'the petition shall be presented by filing it... in the court office, with as many copies of the petition as there are persons to be served'.



The FPR do not specifically define the 'filing' of a document. However, part 2.3(1) of the Civil Procedure Rules defines 'filing' of a document as 'delivering it, by post or otherwise, to the court office', and the Court of Appeal in Van Aken v London Borough of Camden [2002] EWCA 1724, [2003] 1 All ER 552 confirmed that this meant what it said, and did not require any action by the court (such as stamping the document), and so a document could be filed even when the court was not open.



Problems of this nature will not normally be noted until a judge considers the petition. The first judicial consideration of the petition is usually at the special procedure certificate stage, which will usually be many weeks, if not months, after the petition is issued. A petition which has been issued less than one year from the date of the marriage will be dismissed.



In the case of a petition based on a period of separation or desertion which is insufficient, it may be possible to seek to amend the petition to rely on the respondent's behaviour, but even if this can be done, there will be much delay and additional cost as a result. So the best course is to remember 'more haste, less speed'. After all, tomorrow is only a day away.



District Judge Graeme Smith sits at Manchester District Registry and County Court