There are many who believe that our present divorce laws make it too easy to dissolve a marriage. They yearn for a return to the ‘good old days’, when getting divorced was not a trivial matter, and the divorce rate was a fraction of its present figure.
Whilst I do not ascribe to this view, its recent resurgence made me think that perhaps it was worth taking a quick look at the history of divorce in this country, and just what it meant for couples in unhappy marriages.
The villain of the piece, so far as the ‘divorce is too easy’ adherents are concerned, was the Divorce Reform Act 1969. That Act, which came into force in 1971, essentially brought in our present divorce law and virtually doubled the divorce rate overnight.
Prior to 1971, our divorce law essentially progressed in two steps.
The first step was the passing of the Matrimonial Causes Act 1857. Before the coming into force of that Act, no English court had the power to grant a decree of divorce ending a marriage. The ecclesiastical courts could grant divorces ‘a mensa et thoro’, which meant that the parties no longer had to cohabit, but did not mean that they could remarry. The only way a spouse (which usually only meant the husband) could obtain the freedom to remarry was by obtaining a private Act of Parliament, after having first obtained a divorce ‘a mensa et thoro’ from the ecclesiastical court, and a judgment awarding damages for adultery from the common law courts. As can be imagined, this process was horrendously expensive, and was therefore only open to the very wealthy.
The 1857 Act changed all of that, at least as far as the procedure was concerned. It created a divorce court and gave it power to grant decrees of divorce. However, the Act did not change the basic principles upon which divorces had been granted by Act of Parliament. In particular, adultery was still the only ground upon which a divorce could be granted.
The next major step in the evolution of divorce laws was another Matrimonial Causes Act, this one in 1937. This widened the grounds for divorce to include cruelty, desertion for three years and incurable insanity, as well as adultery (these were known by the awful term ‘matrimonial offences’). However, it retained the concepts of ‘guilt’ and ‘innocence’ from the old law – the petitioner having to be ‘innocent’ and the respondent the ‘guilty party’, save where insanity was alleged.
The 1969 Act finally brought in no fault divorce, at least in cases involving two years’ separation and the respondent’s consent, or five years’ separation. As importantly, it did away with the unpleasant requirement that the court made a detailed investigation ntothe reasons for the marriage breakdown, at least in cases that were not defended.
So, just how far back do the ‘divorce is too easy’ adherents want to go? Return to the ‘matrimonial offence’, perhaps? Make adultery the only ground for divorce? Or maybe go the whole hog and require divorcees to obtain an Act of Parliament, with those who can’t afford this having to return to the custom of wife selling?
Image: ‘Selling a Wife’ by Thomas Rowlandson via Wikipedia
John Bolch is a family law blogger