Famously outspoken family judge Sir James Munby has berated the government over legal aid restrictions which left a divorced couple labelled as bigamists through no fault of their own.
The retired family division president, sitting as a High Court judge in M v P (2019), said the state had ‘declined all responsibility’ for helping the parties despite ultimately landing them in this predicament.
The couple had assumed their divorce was finalised by decree absolute in 2014 and each went on to marry again. But the process had been subject to fundamental errors by district judges who granted the decrees despite an administrative mistake on the petition which stated the couple had lived apart for two years. In fact they had actually only been married for 22 months, and the court was now required to decide whether the decree absolute was void or voidable.
Munby said ‘serious mistakes’ were made by the court and by judges in not spotting and rectifying the original error, which was caused by one of the parties ticking the wrong box in the petition.
The ‘human realities’, as Munby put it, were that not only might the couple have committed an offence, but in one case the wife had married a Brazilian national who might no longer be able to enter the UK.
Munby ruled that the decrees were voidable and not void, partly due to there being no previous case to rely on, and partly due to the language and context of the legislation being discussed. Both remain valid and documents could be varied to reflect this.
‘Parliament surely cannot have intended the injustice which will inevitably flow, not just to M and P but also to their new spouses, if the decrees are void,’ said Munby. He said the parties were the ‘innocent victims of failure by the court itself’ who had remarried in good faith and in reliance upon court orders.
If judges were compelled to overturn such a court order then ‘surely the modern judicial conscience would revolt’, he added.
Munby explained that P had been refused exceptional funding by the Legal Aid Agency on the basis she had an available net monthly income of £625.87 and her aggregate income exceeded the limit by £37. The idea these figures should justify her not receiving state aid was ‘unnourished by sense’, said the judge.
Munby added: ‘What I was faced with here was the profoundly disturbing fact that P does not qualify for legal aid but manifestly lacks the financial resources to pay for legal representation in circumstances where, to speak plainly, it was unthinkable that she should have to face the Queen’s Proctor’s application without proper representation.
‘The state has simply washed its hands of the problem, leaving the solution to the problem which the state itself has created to the goodwill, the charity, of the legal profession.’
Munby reserved praise for the ‘professional dedication, commitment and sense of duty’ of Janet Bazley QC and Katherine Dunseath, instructed by Sundeep Budwal and Paul Nuttall of national firm Duncan Lewis, who represented the couple pro bono.
But he added: ‘There is something profoundly distasteful when society, when government, relies upon this as an excuse for doing nothing, trusting to the professions to do the right thing which the state is so conspicuously unwilling to do or to provide for.’