There’s a lot of discussion among family lawyers at the moment about “no fault divorce”, particularly Resolution’s campaign to enable people to divorce without delay and without alleging that the other person in the marriage has been at fault. We’ve alluded to this debate in a previous post and will return to it in more substance another time. To understand the current discussions we think it’s important to have an idea of the context for the changes now being demanded, and so we present CFLP’s “A Brief History of Divorce”.
Way back in the days of yore, when the church was more powerful than the monarch, marriage was a church institution and so divorce was also the preserve of the church. Marriage was for life and divorce exceedingly rare, although the church would occasionally grant a divorce “a mensa et thoro” which enabled people to live apart if there had been significant cruelty, but not to remarry. (Henry VIII, of course, did whatever he wanted.) In the eighteenth and early nineteenth century, it was possible to get a divorce granted by Act of Parliament, but such an option was only open to the rich. The Matrimonial Causes Act 1857 was the first divorce law of general application.
The 1857 Act introduced divorce through the court. Men were able to “petition the court” for a divorce on the basis of their wife’s adultery, which would have to be proved, as would the absence of any collusion or condonation of that adultery. Women who wanted to divorce their husbands needed also to prove an aggravating factor of the adultery, such as rape or incest. The High Court in London was the only place to get your divorce, and proceedings were held in open court, enabling society to be scandalised by the personal details revealed during the process.
The huge social changes in England during and following the First World War, particularly for the role of women in society, led to divorce law reform as it did to reforms in other areas. The Matrimonial Causes Act 1923 put men and women on an equal footing for the first time, enabling either spouse to petition the court for a divorce on the basis of their spouse’s adultery. The requirement to prove the deed and the absence of collusion remained, as did the procedural requirements. In 1937 another Matrimonial Causes Act introduced three more options for unhappy spouses to take to court, and so it became possible to divorce on the grounds of cruelty, desertion and incurable insanity as well as adultery. These were termed “matrimonial offences”. As before, each allegation needed to be proved by the petitioner’s oral evidence. At this stage, parliament also introduced a bar to divorcing in the first three years of marriage.
The Second World War brought about another period of great social change, and a start to the modern era of life as we know it now. Marriages broke down under the strain of war, or its after-effects, in numbers never before experienced and at all levels of society. The church and the government became increasingly concerned that the divorce laws were no longer fit for purpose – unhappy couples would arrange for one spouse to book into a hotel at the seaside for a weekend to commit the adultery necessary for them to divorce. A Royal Commission in the 1950s could not decide the best way forward, and in the mid-1960’s the Archbishop of Canterbury took up the baton. His office prepared a report demanding reform of the law to ensure that people could obtain a divorce if they could show the breakdown of their marriage, and the government set the Law Commission to research the most appropriate way to modernise the divorce laws. This process gestated the Divorce Reform Act 1969, which although now consolidated in the Matrimonial Causes Act 1973 still contains the divorce law we are subject to today.
Like a great deal of social policy legislation, the Divorce Reform Act 1969 was a compromise. It enabled either party to seek a divorce on the basis of the irretrievable breakdown of the marriage, as the Archbishop wanted in the 1960s, but requires that the breakdown be proved by evidence of one of five “facts”: adultery, behaviour, desertion, or separation for 2 years and the other party’s consent to a divorce or separation for five years. You can see that although this Act removed the concept of a matrimonial offence, the old 1937 grounds of cruelty (now termed “unreasonable behaviour”) and desertion in essence remained. However, the big advance in 1969 was that there is no “fault” as such involved in petitions based on 2 or 5 years’ separation. Procedurally there were also changes: it was possible for the first time to get a divorce through the local county court rather than coming to the High Court in London. During the 1970s, courts developed the “special procedure” of divorce-on-paper that still represents the way things are done in the vast majority of divorces.
There are two more quirks of history to note: the first is that it was not until 1984 that the bar on divorcing before 3 years of marriage had elapsed was reduced to 1 year. The second is that major attempts were made in the mid-90s to enact the “no-fault divorce” for which practitioners are now again clamouring. In fact, the Family Law Act 1996 did exactly that: the procedure was that anyone wanting to get a divorce would have to attend an Information Meeting investigating the possibility of reconciliation and discussing mediation if that was not possible. If he or she (or they) still wanted to divorce, a statement of marital breakdown had to be made to court, not less than 3 months after attending the information meeting. No more than 14 days after the filing of the statement, a period of reflection and consideration would commence – this would last 9 months if the couple had no children under 16, or 15 months if they did. After that, the court could finalise the divorce.
Although other parts of the Family Law Act 1996 have been brought into force, the divorce provisions never were and have recently been repealed. The Lord Chancellor’s Department (as it then was) cited a failure of the information meetings as the reason, but the fact was that the Bill suffered so many amendments and compromises to ensure its passage through a Conservative parliament, many of whose members still considered it an attack on the sanctity of marriage and family life, that it was not fit for purpose at the end of the process. The difficult governmental experience with this Bill may be one of the reasons why successive governments since have not been willing to attempt to reform the divorce laws – the current government certainly shows no enthusiasm, although they are all for increasing access to marriage (see previous post here).
As a final historical post-script, it is important to note that the Civil Partnership Act 2004 not only afforded same-sex couples the right to register their civil partnerships, but also to dissolve them. Civil partnership dissolution is available on effectively the same terms as divorce, save that a petition on the basis of adultery is not available due to problems applying the accepted legal definition of the act to same-sex couples. There is something rather jarring about the fact that same-sex couples won their generations-long fight to be afforded the opportunity to have their relationships officially recognised by the state, only to find themselves subjected to effectively the same archaic framework for exit that has existed for nearly a hundred years!
As you can see, divorce law in England in 2012 is mainly a mish-mash of laws from 1923, 1937, and 1969, with recent policy made predominantly by the lawyers and high churchmen of the 1960s. Our adversarial court system, into which divorce was placed in the nineteenth century, still requires one party to obtain a divorce against the other by “petitioning the court” as it did in 1857, even if the divorce is requested on the basis of living apart from each other for two years and with the agreement of both parties. Matrimonial offences may have been removed in name, but the only way of divorcing quickly is still to allege that one spouse has been at fault.
We at CFLP feel that the anachronistic divorce laws of this country encourage allegations to be made by one spouse against the other that increase acrimony and distress for the whole family. This sets people up for a fight. If a marriage has broken down irretrievably and both parties agree that this is the case, to them wait two years to obtain a divorce is nothing more than delay for delay’s sake. As the Archbishop observed in the 1960s, the divorce laws should not be used to keep people in bad marriages against their will. It is time for the law of this country to treat people who have decided that their marriage is over with respect and compassion, in the knowledge that it is not a decision reached lightly and without consideration of the effect on any children. We believe that it is time for a streamlined process without the need for allegations or recriminations, that enables people to move on with dignity and focus on their separate futures without the confines imposed by the laws of yesteryear.
We’d be interested to know whether you agree!