Fifty Years of the Divorce Reform Act 1969

Joanna Miles, Daniel Monk, Rebecca Probert, Joanna Miles, Daniel Monk, Rebecca Probert

• Publisher: Hart Publishing
• Year: 2022
• ISBN:
  9781509947898
• Edition: 1
• Topic: Droit
• Subtopic: Droit de la famille

The enactment of the Divorce Reform Act 1969 was a landmark moment in family law. Coming into force in 1971, it had a significant impact on legal practice and was followed by a dramatic increase in divorce rates, reflecting changes in social attitudes. This new interdisciplinary collection explores the background to the 1969 Act and its influence on law and society. Bringing together scholars from law, sociology, history, demography, and film and literature, it reflects on the changes to divorce law and practice over the past 50 years, and the changing impact of divorce on different people in society, particularly women. As such, it offers a 'biography' of this important piece of legislation, moving from its conception and birth, through its reception and development, to its imminent demise. Looking to the future, and to the new law introduced by the Divorce, Dissolution and Separation Act 2020, this collection suggests ways for evaluating what makes a 'good' divorce law. This brilliant collection gives insight not only into this crucial piece of legislation, but also into a key period of societal change.

PART ONE

Introduction

1

‘Irretrievably Broken’? Introducing the Life-Story of the Divorce Reform Act 1969

JOANNA MILES, DANIEL MONK AND REBECCA PROBERT

I.The 1969 Act: What It Did and Said, In Short

By any measure, the passage of the Divorce Reform Act 1969 was a landmark moment in family law. It had a significant impact on legal practice and saw a dramatic increase in divorce. It also had symbolic significance, reflecting changes in social attitudes. But the law’s inherent tensions also exhibited prevailing contestations about public morality, conflicting ideals of citizenship and ambivalence about the reforms. And alongside and in keeping with the other key ‘permissive’ reforms of the era (in particular, the decriminalisation of abortion and ‘homosexuality’ in 1967), radical change went hand in hand with a degree of continuity.

The Act, codified quite soon after its enactment into Part I of the Matrimonial Causes Act 1973, enshrined the principle that a divorce could be granted if the marriage had ‘broken down irretrievably’. Before the Act’s passage, almost all divorces had been granted on one of three fault-based grounds: adultery, cruelty and desertion.¹ Of these, cruelty and desertion had only been available as grounds for divorce for a little over 30 years.² Previously, adultery had been the sole basis on which a husband could divorce his wife. Wives, perhaps unexpectedly, had had three additional grounds to choose from; however, as these were rape, sodomy and bestiality, this hardly put them in a privileged position.³ Moreover, before 1923, a wife was not able to obtain a divorce on the basis of her husband’s adultery without establishing an additional aggravating factor: incest, bigamy, cruelty or desertion.⁴ And before 1858 there been no option of obtaining a divorce from a court at all: ending a valid marriage had required a private Act of Parliament.

Of course, the 1969 Act did not allow for divorce on the basis of breakdown alone, even where it was accepted by all, the court included, that the marriage had broken down irretrievably.⁵ That would have been too big a step to take – tantamount to divorce by consent and on unilateral demand. Instead, breakdown had to be proved by one of five facts, which – perhaps surprisingly – did not need to be proved to have been a cause of the breakdown.⁶

Admittedly, three of those five facts bore more than a passing resemblance to the old grounds for divorce, although two were subtly modified to align with the new principle of breakdown. Adultery was no longer sufficient alone: it had to be intolerable for the petitioner to live with the respondent.⁷ Cruelty became ‘behaviour’ – not, it should be emphasised, ‘unreasonable behaviour’ but the fact that the respondent had ‘behaved in such a way that the petitioner cannot reasonably be expected to live with him’.⁸ Desertion alone remained unmodified, but this hardly mattered given the two new ‘separation’ facts. It was expected that the need to establish desertion would fade away, since a separation for an equivalent period of time – two years – would suffice to establish breakdown if the respondent consented to the divorce. Both elements of this were radical innovations at the time. Separation had long been proposed as an alternative ground for divorce, but regularly rejected. Consent, meanwhile, was so diametrically opposed to the principle of the matrimonial offence that, until 1963, an agreement between the parties that both wanted a divorce might well be deemed collusion and thus absolutely bar a divorce and, post-1963, still justified a court in exercising its discretion to refuse a divorce.⁹ Under the new law, absent the respondent’s consent, the petitioner would have to show five years’ separation to establish breakdown. So, it was anticipated that if a marriage had broken down, a divorce would be available, sooner or later, without the need to prove any particular conduct by the respondent. This was a big change.

II.This Collection: What It Aims to Do

The aim of this interdisciplinary collection is to explore the background to the 1969 Act, its impact on law and society, and changing perceptions and experiences of divorce over the past 50 years. This book had originally been intended to mark, in 2019, the 50th year of the Divorce Reform Act 1969 – then (given the delay enforced by the global pandemic) of the 50th anniversary, in 2021, of its coming into force. Planning commenced in 2017, at which point longstanding calls for a new law were far from certain to succeed. But the enactment of the Divorce, Dissolution and Separation Act 2020, due to come into force in April 2022, turned what had been planned as an ‘anniversary’ into a ‘funeral’ (or, if you prefer, a wake!).

As these key life-stage metaphors suggest, reflecting on one statute – from its origins to its demise – can be thought of as a form of legal biography. The concept of a Biography of a Statute is a relatively new one, building on a broader movement away from thinking of biography as applying only to human subjects but as a frame for thinking about cities, artefacts and objects. Most recently, it has been applied as a conceptual method for exploring another key transformative statute from the late 1960s, the Abortion Act 1967.

In defending the adoption of a biographical approach to a statute, Sheldon et al identify three major implications:

First, it foregrounds a basic socio-legal insight: that law is a living thing, which needs to be studied as it is interpreted and takes effect in practice, rather than merely as it exists on the statute books. Even where a statute’s text remains unchanged, its acquisition of legal meaning is an ongoing process, which involves interpretative work; development and consolidation of received understandings; evolving practices; and moments of challenge, rupture, and revision. Such evolution in meaning inevitably both reflects and influences the shifting broader social and institutional contexts within which a law is read, understood and applied. Second, a statute – and particularly one characterised by considerable controversy – also acquires a broader social and symbolic meaning, which stands in no necessary relationship either to the intention of its drafters or to its doctrinal meaning, as developed by lawyers. The stories told about a law – and what that law represents in broader cultural terms – can and will evolve, whilst at times revealing roots which go deep into its history. Finally, the subject of a biography can offer a window through which to study aspects of the world evolving around it.¹⁰

In the case of divorce reform, those other aspects of the world implicated in divorce law’s biography include Anglicanism, feminism, creative artists, politics and parliamentarians, the judiciary, the divorcing public (as a whole and sub-groups within it), the general public, those working in therapeutic professions and others. And so, in telling the life-story of the Divorce Reform Act 1969, we inevitably glimpse aspects of the life-stories of those other institutions, ideologies, groups and individual actors.

These implications or qualities of biography as a framework capture both individually and collectively the diverse perspectives and insights offered by the authors of the contributions presented here. In its origins, applications and representations, and from the accounts of some of its advocates and fiercest critics (in 1969 and since), the Divorce Reform Act 1969 has always been a statute with many audiences, extending far beyond the individual couples whose marriages are ending. We hope in this book to give some sense of the richness of the Act’s ‘life’, with a diverse range of contributions from scholars of history, sociology, film criticism and demography, as well as lawyers and from both established scholars – many of whom have been teaching the Act to students over many years – and younger scholars born decades after the Act itself came to life. That said, while this collection is far wider than an ‘official’ account or biography, we do not claim to offer a definitive or comprehensive biographical account, rather a collection of snapshots of particular moments, representations and reflections, many of which in turn reflect something of the biographies of the individuals involved. There are issues that we do not address, or touch on only briefly, that deserve more attention – notably, the de-legalisation of divorce over time, with the removal of legal aid, the promotion of mediation as a forum for resolving the (far more consequential) ancillary issues arising on divorce, and the experiences of different social groups/classes and of those who increasingly do not interact with any family justice system professional in securing their divorce and addressing its implications.¹¹ As with all rich lives, there is space for many biographies of the life of the 1969 Act. But we hope that readers will enjoy the diverse, thought-provoking perspectives offered in this collection, and that it will serve as a resource for scholars in the future who, inevitably, will bring new perspectives to bear on the past.

In the rest of this introductory chapter, we first apply Sheldon et al’s prescription by digging into the deep legal historical roots of the 1969 reform, examining in more detail the fundamental shift from the ‘matrimonial offence’ to the breakdown principle. We then describe briefly aspects of the practical experience of the 1969 divorce law in action, in particular highlighting the critical and arguably even more transformative role of the so-called ‘special procedure’ that was introduced in the mid-1970s for the efficient, essentially administrative dispatch of uncontested divorces, and the growing dissatisfaction with the 1969 law’s operation that culminated in the enactment of the new divorce legislation that is – to put it bluntly – scheduled to kill off the subject of this biography and begin a new statutory life-story. This basic book-work is intended to bring up to speed readers not familiar with the essential legal history of divorce law or who may want a refresher, and to set the scene for the chapters that follow. We then introduce the contributions to this collection and the inter-twined themes of biography and narrative (doctrinal, fictional, strategic), continuity and change, gender and religion that weave their way through the life-story of the 1969 Act.

III.The Big Theoretical Shift: From Offence to Breakdown

We begin with the legal history necessary to locate the 1969 Act in the longer trajectory of divorce law and theory in England and Wales.

In establishing the principle that a divorce could be granted if the marriage had ‘broken down irretrievably’, the 1969 Act finally abolished the idea that a divorce could only be obtained upon proof by the petitioning spouse that the respondent spouse had committed a ‘matrimonial offence’. To appreciate the significance of this, we need to delve deep into history.

The concept of the ‘matrimonial offence’ had originated in the jurisprudence of the ecclesiastical courts – which, of course, did not recognise the concept of a divorce at all, at least not in the modern sense of a decree terminating a valid marriage. While elsewhere across Europe, the Protestant Reformation had marked the rejection of ‘the sacramental and indissoluble nature of marriage’,¹² in England and Wales marriage had remained indissoluble (notwithstanding the matrimonial antics of Henry VIII, whose three defunct marriages were in fact annulled not dissolved¹³), even if it was no longer regarded as a sacrament.

The ecclesiastical courts were able to grant divorces a vinculo matrimonii, but these were annulments and so required it to be shown that there was an impediment to the marriage that had prevented it from comi...