A History of Divorce Law

Reform in England from the Victorian to Interwar Years

Henry Kha

• Publisher: Routledge
• Year: 2020
• ISBN:
  9781000286724
• Edition: 1
• Topic: Geschichte
• Subtopic: Weltgeschichte

The book explores the rise of civil divorce in Victorian England, the subsequent operation of a fault system of divorce based solely on the ground of adultery, and the eventual piecemeal repeal of the Victorian-era divorce law during the Interwar years. The legal history of the Matrimonial Causes Act 1857 is at the heart of the book. The Act had a transformative impact on English law and society by introducing a secular judicial system of civil divorce. This swept aside the old system of divorce that was only obtainable from the House of Lords and inadvertently led to the creation of the modern family justice system. The book argues that only through understanding the legal doctrine in its wider cultural, political, religious, and social context is it possible to fully analyse and assess the changes brought about by the Act. The major developments included the end of any pretence of the indissolubility of marriage, the statutory enshrinement of a double standard based on gender in the grounds for divorce, and the growth of divorce across
all spectrums of English society. The Act was a product of political and legal compromise between conservative forces resisting the legal introduction of civil divorce and the reformers, who demanded married women receive equal access to the grounds of divorce. Changing attitudes towards divorce that began in the Edwardian period led to a gradual rejection of Victorian moral values and the repeal of the Act after 80 years of existence in the Interwar years.

The book will be a valuable resource for academics and researchers with an interest in legal history, family law, and Victorian studies.

1Introduction

The Matrimonial Causes Act 1857 introduced civil divorce¹ and the Court for Divorce and Matrimonial Causes.² These were important developments that led to the creation of the modern English family justice system. Before the introduction of the 1857 Act, marriage was not dissolved by a decree of the civil courts.³ Instead, divorce was a tripartite process involving the Assizes, the Ecclesiastical Courts, and the House of Lords. This was a rather long and complicated process. The book aims to explore the motivations for the introduction and the impact of the 1857 Act by analysing its 80-year operation. It will also address the downfall of the 1857 Act during the Interwar years.

The historical background of the Matrimonial Causes Act 1857 provides an explanation for the tensions between legal change and political resistance to the introduction of civil divorce. Victorian England is often characterised as an age of reform which saw pressures for change met with some resistance.⁴ K. Theodore Hoppen argues the 1857 Act was biased in favour of men because of the double standards in the grounds for divorce between husbands and wives,⁵ but also maintains the 1857 Act was ‘not entirely devoid of reforming content with respect to women’s rights.’⁶ The double standard refers to the husband only having to prove the wife’s adultery in order to obtain divorce, whereas the wife had to prove not only the husband’s adultery but also an aggravated enormity (i.e., incest, rape, sodomy, bestiality, cruelty, desertion).

The advances in women’s rights accrued from the 1857 Act include the protection of matrimonial property for separated, deserted, and divorced wives. The tension between reform and continuity was characteristic of Victorian England.⁷ Stephen Cretney states:

1(20 & 21 Vict c 8). 2The Court for Divorce and Matrimonial Causes was the precursor to the Probate, Divorce and Admiralty Division (now known as the Family Division) of the High Court of Justice that was established in 1875. 3There was one notable exception during the Interregnum. The Marriage Act 1653 briefly introduced civil divorce for only seven years, but it was abolished at the Restoration in 1660. 4Llewellyn Woodward, The Age of Reform 1815–1870 (Oxford University Press 1938). 5K. Theodore Hoppen, The Mid-Victorian Generation 1846–1886 (Oxford University Press 1998) 200. 6Ibid.

Why then was the 1857 Act passed? Its origins certainly do not lie in any concern for abstract justice. Rather they lie in the pressing need, highlighted by the growth in personal wealth associated with industrialisation, to get rid of the ramshackle probate jurisdiction exercised by 350 or so ecclesiastical authorities and to replace it with a more efficient system of dealing with deceaseds’ property.⁸

The ‘pressing need’ identified by Cretney refers to the public pressure from judges and politicians to abolish the Ecclesiastical Courts’ jurisdiction over matrimonial causes and probate. This was based on the influence of Benthamite utilitarian law reform that persisted during the Victorian era.⁹

Only through an understanding of the legal doctrine situated within its historical, religious, social, and cultural contexts is it possible to conduct a proper assessment of the changes brought about by the 1857 Act. The book argues that the 1857 Act and its later operation was not merely a procedural change, as is so often claimed.¹⁰ An analysis of legal doctrines reveals secularisation of the law, the abolition of ecclesiastical jurisdiction, and the expansion of women’s rights as significant factors that took reform outside of the realm of merely procedural change. The establishment of the modern family justice system also dispels the myth of the 1857 Act being simply a procedural change, albeit unbeknownst to legislators at the time.

The way that the 1857 Act evolved was significantly influenced by cultural change. Law and culture are not conceptually distinct, but rather are mutually related to one another within a particular culture.¹¹ Legal change is inevitably bound up with cultural change. Key cultural changes include a growing acceptance of divorce, especially among the middle class.¹² In part this was built on increasing acceptance of a eudemonistic view of marriage, but also dissatisfaction with the existing law. At the same time there was a gradual cultural rejection of marriage as solely a religiously administered sacramental institution,¹³ and a greater acceptance of marriage as a civil contract which ultimately influenced the law of divorce.¹⁴ Nevertheless, there were some who resisted the changing values on the indissolubility of marriage. William Gladstone and others resisted the introduction of the 1857 Act because of their conservative Christian beliefs on the sanctity of marriage.¹⁵ Although they failed to stop the introduction of civil divorce, they managed to obtain some concessions that would later trouble the next few generations. These included restricting divorce based on the ground of adultery and the introduction of a double standard between the sexes in obtaining divorce. Over time these restrictions would prove to be increasingly unpopular and ultimately led to the successful campaign for comprehensive reform of divorce law and the expansion of the grounds for divorce in 1937.¹⁶

7During the mid-nineteenth century, there was ongoing debate over the fusion of equity and common law that culminated with compromise. The separate courts of common law and equity were unified under the High Court of Justice, but common law and equity remained separate doctrines under the Supreme Court of Judicature Act 1873 (36 & 37 Vict c 66). 8Stephen Cretney, Family Law in the Twentieth Century (Oxford University Press 2003) 162. 9William Cornish, ‘Law of Persons: Family and Other Relationships’ in J. Stuart Anderson, Ray Cocks, Michael Lobban, Patrick Polden, and Keith Smith (eds), The Oxford History of the Laws of England: Volume XIII (Oxford University Press 2010) 781–4. 10Allen Horstman, Victorian Divorce (St Martin’s Press 1985) 78; Sybil Wolfram, ‘Divorce in England 1700–1857’ (1985) 5(2) Oxford Journal of Legal Studies 155, 178; Margaret K. Woodhouse, ‘The Marriage and Divorce Bill of 1857’ (1959) 3 American Journal of Legal History 260, 274–5. 11Naomi Mezey, ‘Law as Culture’ in Austin Sarat and Jonathan Simon (eds), Cultural Analysis, Cultural Studies, and the Law: Moving Beyond Legal Realism (Duke University Press 2003) 37. 12Michael Mason, The Making of Victorian Sexuality (Oxford University Press 1994) 124.

Legal historiography

The literature on divorce law in Victorian England can be divided into three main categories: social history, feminist history, and legal history. Social history is concerned with a historical understanding of the cultural practices and social behaviour of ordinary people in their everyday lives rather than that of monarchs and aristocrats. It is based on an eclectic mix of methodology deriving from anthropology, sociology, and statistics. The appeal of social history lies in its ambition to present an objective and scientific history. Social historians, however, are not immune to prejudice and statistics have significant limitations. G.R. Elton notes social historians of the family, such as Lawrence Stone, presented intricate details well, but were less satisfactory at arranging details in patterns.¹⁷ Elton attributes this failure to the difficulties of applying broad themes to the actions of individuals.¹⁸ In regards to the methodology of social history, Richard Evans states, ‘When it came to the really big issues in history, it had to remain silent, because they could not be solved by quantitative methods.’¹⁹ Statistics can be misused, misinterpreted, and misinformed. Therefore, statistics do not speak for themselves, but rather a historian must gather and interpret the data.

The scholarship of Lawrence Stone and Sybil Wolfram are predominantly concerned with the social life and customs of Victorian England. Wolfram considers the expansion of divorce law as an ethnographical aspect of English kinship.²⁰ She argues that the growing rejection of the doctrine of coverture (i.e., the union of husband and wife as one flesh in Christianity) had a significant impact in promoting the growth of English divorce.²¹ Wolfram’s anthropological background provides a useful framework in understanding the interaction between English culture and the law. Wolfram argues that the 1857 Act was presented as merely procedural with its origins traced to the establishment of Lord Brougham’s Law Amendment Society in 1844.²² This account sees the reform process as a perfunctory ...