The good old days? A brief history of divorce by John Bolch

Divorce|Family Law|January 28th 2014

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?

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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  1. Luke says:

    The problem is not that divorce is too easy, it is that marriage is too easy – half the blokes have no idea what they are setting themselves up for – but financially what we have suits the state and it suits women so nothing is done.

    I don’t blame women for this, few groups ever vote to reduce their advantage, but the effects are slowly starting to be seen now – men are starting to opt out.

  2. Andrew says:

    You might like this detail. In the course of getting the divorce a mensa et thoro – the effect of which was very much like that of the absurd judicial separation which we still have – the husband had to swear an affidavit – in the ecclesiastical court – that he did not intend to seek a divorce by Act of Parliament. And the judge had to pretend to believe him.

    Just one of the little hypocrisies in which English marriage and divorce law have always abounded.

    The other gem is that under the old Poor Law the parish would not meet the cost of banns and the clergyman’s fee for the wedding of two paupers, as they were then called, unless and until the female of the species was pregnant!

  3. JamesB says:

    The current law was intended that people could have amicable divorces and use the two years separation with consent and that was intended as to be the most popular ’cause’. I advise all I can to go down that route.

    Instead, solicitors hopped on the unreasonable behaviour vehicle and upset everyone when it was never intended to be used as a get out of a marriage free card.

    The law needs to reform the law. The (lets say woman) needing to get a divorce to go off with her lover has to call the husband unreasonable to get the divorce. That is crazy.

    The law is crazy. Fewer and fewer people pay any attention to it and that is why it needs to change to be respected.

    I think people should write their own marriage vows and pre nups.

    I am married. I have a pre nup and married in a registry office. I do intend to get it blessed in a church and write some vows which we both mean.

    Vowing til death us do part, richer for poorer then cleaning up on divorce makes no sense and has brought the law into disrepute.

    Claiming (implying) that people who don’t like the law are stuck in the past as this article does is very wrong and destructive, if that is what it is saying. Although I am about to read the wife selling link which might be funny.

    I wish I had taken that arab chap up on the offer of camels for my ex wife when I was in Tunisia years ago (joke). Blondes have rarity value there.

  4. JamesB says:

    I mean I advise those who absolutely cannot stay married to go down that route.

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