As a specialist in divorce law, the history and case law of how we got to where we are today fascinates me.
A short history of divorce law!
Until 1857 there was no divorce law. A Christian view of marriage saw it as a lifelong union. Only a Private Act of Parliament could dissolve it, but this was lengthy and expensive, so available to few.
The 1857 Matrimonial Causes Act (MCA) enabled divorce where the Petitioner could prove adultery, (the ‘matrimonial offence’) plus no collusion or condonation. A wife also had to prove incest, cruelty, bigamy or desertion. (This was abolished in 1923).
The 1937 MCA introduced cruelty, desertion and incurable insanity. The emphasis, however, was still on proving the matrimonial offence.
Until 1969 it was impossible for a “guilty” spouse to divorce an “innocent” partner, so divorce and remarriage could be blocked forever.
With no consensual divorces permitted, the experience was adversarial and bitter, the adulterous Respondent wife being treated the more harshly, both financially and parentally, often losing the children. All divorces, even undefended, necessitated the parties attending court, causing humiliation and distress.
Divorce was on the increase and with consensus not permitted, staged adulterous scenarios took place, often in hotels, with photographers bursting in to obtain ‘proof’ of a spouse in a compromising position with a person (not their spouse!).
In the mid-1960’s, Law and Church reports led to fundamental change, stating that when a marriage had irretrievably broken down, the aim must be fairness with minimum bitterness, humiliation, and distress. The ‘matrimonial offence’ was removed, and irretrievable breakdown (with one of the five facts) became the sole criterion.
An adulterous wife was no longer presumed to be a bad mother and worse than an adulterous man. In Iran and Saudi Arabia adulterous wives can still face execution, and in some of the United States she can still be imprisoned, but our law changed to attempt equality.
Between 1973 and 1977 a special procedure was introduced to allow undefended divorces to be granted with simplicity, speed and economy. The five facts were introduced, adultery, unreasonable behaviour, desertion, and separation. The parties need not even attend. This became the norm and remains so in England and Wales. Defended divorces nowadays are very rare.
If you need a specialist in divorce law, please contact me.