THE DANGEROUS USE OF “PRECEDENTS”: WHEN 28 DIVORCE PETITIONS MAKE IDENTICAL ALLEGATIONS THEN SOMETHING IS NOT QUITE RIGHT..

October 12, 2021 · by · in Abuse of Process, Applications

The judgment of Mr Justice Moor in Yorston & Ors, Re (Matrimonial Causes Act 1973: Improper Petitions) [2021] EWFC 80 makes interesting reading.  The judge was considering a referral from a court which found that 28 divorce petitions, based on behaviour, were absolutely identical.

“all these particulars are absolutely identical and cannot, therefore, all be true in each of the twenty eight cases.”

THE CASE

A county court judge referred the issue of 28 petitions to the High Court Judge. In each case the allegations of unreasonable behaviour were absolutely identical.

THE JUDGMENT

The judge observed that it was not possible for 28 different marriages to have identical grounds of behaviour.

    1. Each case must, of necessity, be different. Different spouses behave in different ways. It is quite impossible for each of 28 respondents to have behaved in exactly the same way as the other 27.
    1. In these twenty-eight cases that I am concerned with the particulars of behaviour were found to be absolutely identical in each petition, namely:-
“For about a year prior to the separation the respondent would become moody without justification and argumentative towards the petitioner. He/she would behave in this way on at least a couple of days every week, which would cause a lot of tension within the home thereby making the petitioner’s life very uncomfortable. During the same period the respondent would also often ignore the petitioner and decline to communicate with him. He/she would also behave in this way on about two days every week, which would also cause a lot of tension within the home and make the petitioner’s life very difficult. The respondent showed no interest in leading the life of a married woman/man for about a year before the separation. For example, he/she would go out socially on his/her own and basically exclude the petitioner from his/her life thereby making him/her feel very dejected.”
  1. I make it absolutely clear that those particulars are exactly the sort of particulars that I would expect to see in a divorce petition and I would not have blinked an eyelid. If proved to be true, I am satisfied that they would be sufficient to found a decree of divorce on the basis of the law as it is at present. It is, however, quite impossible for all twenty-eight respondents to have behaved in exactly that way. I regret to have to conclude that, as a result, these petitions are improper.

HOW COULD 28 PEOPLE BE SAID TO HAVE IDENTICAL EXPERIENCES

The reason why the 28 petitions were identical was explained.  The petitions were prepared by “iDivorces” who used a precedent.

    1. All these twenty eight petitions were drafted by and filed on behalf of the twenty eight petitioners by iDivorces, although technically each petitioner was acting in person. I make no criticism of that. I accept that Mr Eastham, a director of iDivorces, has apologised to me profusely. He accepts that iDivorces used this standard wording. He tells me that they sent the wording to each petitioner and asked them if there was anything in there that was wrong, although it is tolerably clear that not one of the twenty eight made any amendments to the draft. I am, however, clear that this is not the correct way to proceed. Each petitioner has to put, in their respective petitions, their own particulars, which are true and which actually occurred. The respondent can then accept the petition, seek to amend the allegations, or to defend the divorce if he or she wishes to do so.
    1. As all these particulars are absolutely identical and cannot, therefore, all be true in each of the twenty eight cases. If I needed to give an example, it would be to say that it would incredible if all twenty eight respondents ignored the twenty eight petitioners and declined to communicate with them on about two days per week. It follows that I have no alternative but to dismiss all twenty-eight of these divorce petitions. The petitioners will simply have to start again. I hope it will be possible for them to proceed relatively quickly.
    1. I indicated in my previous order and told Mr Eastham over the telephone last Friday that I was considering a reference to the Director of Public Prosecutions on the basis that this could potentially amount to the crime of perverting the course of justice. Mr Eastham has apologised to me in court. He has said that it was a misunderstanding and that he thought it was acceptable if he told the petitioners to correct anything that was wrong in the petition. He has confirmed that it will never happen again.
    1. As a result, I have come to the conclusion that there would be insufficient public benefit in referring these cases to the Director of Public Prosecutions. I consider it would be disproportionate to do so on this occasion, but, if it was ever to happen again, I would have no hesitation in making a referral.
    1. Although the cases were listed in open court, there was no attendance by the Press. I have therefore decided that I should place this judgment on the BAILII website to ensure that nobody else decides to do exactly the same as has happened in this particular case.
  2. It follows that all twenty-eight divorce petitions as read out at the beginning of this hearing stand dismissed.
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