Our legal system is constantly under review – new case law, revised statue and amended procedural rules transform our work year by year. However, if we cast our eyes back 100 years how much has really changed?
Divorce was introduced to England as a civil (as opposed to ecclesiastical) procedure in 1857 with the implementation of the Matrimonial Causes Act.
Before this divorce or separation was the preserve of the wealthy. Relationship breakdown could only be regulated by:
- Judicial separation granted by the ecclesiastical courts; or
- Dissolution obtained by an Act of Parliament.
The new act opened up divorce to the country and formed the basis of the matrimonial law that we apply today.
The divorce courts viewed marriage as a contract between a man and woman; a voluntary union to the exclusion of all others. Following marriage the husband and wife were regarded as one person. The status of the wife was merged with the husband, to such an extent that if a wife assisted her husband with a crime she would be treated as acting under his coercion.
The age at which people could marry was much younger, 14 for men and 12 for women. Parental consent was not required, although parents could forbid the banns, in which case any marriage would be void.
Matrimonial suits were dealt with by the Probate and Divorce Division of the High Court, then at Somerset House on the Strand in London. Their primary work was decrees for divorce, judicial separation, nullity and an alien provision to us: the restitution of conjugal rights! The court also dealt with the custody, access, maintenance and education of children together with the allotment of alimony (our periodical payments), the settlement of property and application of damages.
The grounds for divorce were far narrower than they are today, although followed the same footprint. There was no concept of a fault free divorce and a clear gender bias in the legislation. A husband could present a petition on account of his wife’s adultery alone. A wife whose husband had committed adultery had further hurdles to overcome; her husband also had to be guilty of one of the following:
- Incestuous adultery – adultery by the husband with a woman whom, if his wife were dead, he could not lawfully marry.
- Certain criminal offences.
4. Cruelty – Lord Justice Lopes in Russell v Russell “danger to life, limb or health bodily or mental or a reasonable apprehension of it”. This was held to include insanity, drunkenness, threatening behaviour, violent temper if it caused mental anguish, forcing a wife into prostitution or passing on a venereal disease.
- Desertion for two years without consent –it was not desertion for a husband to leave his wife for employment, for example if he went on a long voyage as a sailor, but would be desertion if he didn’t return afterwards. If a husband’s behaviour forced a wife to leave the home she could also make a case for desertion if his conduct continued and she was forced to stay away.
Even if a case could be made, at the point it was presented to the court there were still absolute and discretionary bars to refuse it. Unlike today only around 70% of the petitions presented to the court were successful. Absolute bars included:
- If the adultery is not proved.
- If the petitioner knew the adultery was going on and didn’t stop it (connivance).
- If the petitioner was aware of the adultery but chose to forgive or ignore it (condonation). If the petitioner attached a condition that the adultery was to cease, the condonation came to an end if it did not.
- If the petitioner and respondent or co-respondent agreed to co-operate with the suit, so that the true facts were not placed before the court (collusion). Alternatively if the respondent was paid to keep quiet or if they arranged the adultery to present a false case.
Discretionary bars included where there was evidence that the petitioner had also committed adultery or behaved cruelly, if the petitioner had deserted the petitioner before the adultery, or if the petitioner had wilfully neglected the respondent which ‘caused’ the adultery.
When and if the petitioner proved his or her case, the court (as now) would grant Decree Nisi. The timescales were significantly longer to conclude the case, rather than our six week cooling off period, the petitioner’s final dissolution was contingent upon his or her good conduct, usually for a six month period. This window also provided a further opportunity for objections to the case. Anyone could give information about collusion or any other relevant fact to the King’s Proctor who in turn would consult the Attorney General with a view to reversal of the Decree Nisi. Otherwise, at the end of the six months the Nisi was made Absolute.
As now, in the period between the Decree Nisi and the Decree Absolute, the marriage was not dissolved. Any adultery by the petitioner or the respondent would be a matter for the court to be made aware of and could affect the success of the case.
Cost claims were often included, and were proportionately far more significant than today. Whether a costs order could be made was at the absolute discretion of the court, except that a wife without her own estate would always be entitled to costs from the husband, whether or not she was the ‘guilty’ party. The approach was far more contentious, the co-respondent would always be named and could also be liable to pay all or some of the costs unless he could demonstrate that he did not know that the respondent was married and there were no suspicious circumstances that should have put him on notice.
The effect of Decree Absolute was identical to today, the divorce was complete and the parties were then at liberty to marry again. As now, the court retained jurisdiction within the suit to make financial orders but could also make orders relating to the children.
After pronouncement of the Decree Absolute the court could enquire into the existence of any ante or post-nuptial settlement and make orders accordingly. The court could apply orders to settle property for the benefit of the children or the parents. At the start of divorce proceedings it would be usual for the wife to apply for an order for maintenance (then alimony) during and after the suit, which could continue for life. If the husband was destitute and the wife was independently wealthy then he could apply for an order from her, although this was far less common.
The position in relation to any children differs significantly. The court retained ability to make the same kinds of orders that would be familiar to us – custody, access, maintenance and education save their jurisdiction extended until the children were 21. Unlike today the father would invariably be given the custody of the children irrespective of their age, sex or his prior involvement in their lives. This could be varied but only in discreet and unusual circumstances, for example if the children were very young, or if the mother’s health suffered significantly as a consequence of their absence.
Whilst the law and the language we still apply can clearly trace its roots from legislation from over 100 years ago, much has changed. Women’s rights in particular have developed significantly as has the constructive approach to divorce that we all adopt as Resolution members. Hand in hand with these developments has been a huge increase in the numbers of people going through this process – until the conclusion of the vcSecond World War less than 1,000 people divorced each year, with slightly more men than women petitioning. In 2010 there were 119,859 divorces, with almost twice as many women than men in the driving seat.