D.I.V.O.R.C.E. Legally Severing the Bonds of Marriage

Of all the forms of litigation that unhappily married spouses could pursue in the Divorce Court between 1858 and 1923, divorce is probably the most recognisable today. For clarity, divorce is a form of permanent legal separation that allows both spouses to remarry. It was one of only two options available to unhappily married husbands and wives to permanently end their marriage during this time, the other being a nullity of marriage, which we’ll explore in more detail in a future blog. It’s important to remember that even if a divorce was successful and remarriage was legally allowed, divorcees were often refused permission to have a wedding ceremony in a church. While the remarriage of divorcees has become more socially acceptable in recent times, for some the stigma of their status is still prevalent. One of the most high-profile remarriages of two divorcees in the twenty-first century involved the current Head of State and Head of the Church of England, King Charles III (at the time Prince Charles) to his former mistress, Mrs. Camilla Parker Bowles on 9^th April 2005. Their wedding ceremony took the form of a civil ceremony at Windsor Guildhall and was followed by a Service of Prayer and Dedication at the Church of England’s St George’s Chapel on the grounds at Windsor Castle (see image). Notably, Queen Elizabeth II did not attend the marriage ceremony itself, allegedly because she considered it inappropriate to do so as Head of the Church of England. 

What were the grounds for divorce? 

Before the creation of the Civil Divorce Court in 1858 (with the introduction of the Matrimonial Causes Act 1857) divorce in England and Wales had been overseen by the Ecclesiastical Courts. The process to obtain a divorce a vinculo matrimonii (a full divorce that permitted remarriage) was complicated and expensive and involved the ecclesiastical courts, the Assizes and the House of Lords. The high cost and complexity of this process made it difficult to obtain a divorce, in fact according to UK Parliament between 1700 and 1857 there were only 314 Private Acts of Parliament for divorce, and only four of these were granted to women. 

 The creation of the Civil Divorce Court in 1858 improved access to divorce for husbands and wives across England and Wales, despite the legislation surrounding grounds for divorce remaining rooted in ecclesiastical law. Unsurprisingly, grounds for divorce were restrictive and proof of adultery was required in almost all cases, reflecting the state’s dominant concern with preventing sin and sexual immorality. Divorce legislation also reflected the social and legal status of women at the time, with a gendered double standard in divorce law that made it harder for wives to pursue a divorce. Husbands petitioning for a divorce only had to prove their wives’ adultery, but wives had to prove their husbands’ adultery plus an additional aggravating factor of cruelty, desertion for two years or upwards, bigamous adultery or incestuous adultery. In addition, a wife could also pursue a divorce on the sole ground of her husband committing an ‘unnatural act’, such as rape (of someone other than their wife), sodomy, or bestiality, although the use of these in the Divorce Court was very rare.  

These grounds for divorce remained unchanged for over sixty years, until the Matrimonial Causes Act 1923 was introduced on the 18 July in that year. It finally removed the gendered double standard in divorce law, which had required a wife to prove an additional aggravating factor. Now a wife petitioning for divorce could do so on the same grounds as a husband, having to only prove his adultery. Alongside this, a wife could still pursue a divorce on the sole ground of her husband committing rape (of someone other than their wife), sodomy, or bestiality. The new legislation enacted in 1923 may have brought about gender equality in divorce legislation, but it didn’t expand the grounds for divorce, and didn’t reflect the complex reasons that a marriage might falter.  

It wasn’t until the introduction of the Matrimonial Causes Act 1937 on the 1 January 1938 that the grounds for divorce were expanded beyond adultery. This reform of divorce law was based on a private member’s bill that was introduced by A. P. Herbert, an MP for Oxford University and author of the 1934 satirical novel, Holy Deadlock, in which he highlighted the absurdity of the divorce law at the time. Alongside adultery, either spouse could now also petition for divorce using the sole ground of cruelty, desertion of three years or more, or a spouse being of unsound mind and under medical care and treatment for five years. As had been the case since 1858, a wife could also still divorce her husband using the sole ground of rape (of someone other than her), sodomy, or bestiality. 

The next substantial reform of grounds for divorce wasn’t until the Divorce Reform Act 1969 became law on 1 January 1971. Now the sole ground upon which all divorce petitions could be made by a husband, or a wife was the irretrievable breakdown of the marriage. However, the spouse petitioning for the divorce had to apportion blame to their husband or wife for this using one of five reasons. This could be adultery (where the petitioner found it intolerable to live with the respondent); unreasonable behaviour (to the point the petitioner couldn’t be expected to live with the respondent); desertion for two years continuously; or that the spouses had lived apart for more than two years continuously and the respondent consented to a decree being granted; or separation of five years if only one party wanted the divorce.  

Over fifty years later, following the high-profile case of Owens v. Owens [2018], the Divorce, Dissolution and Separation Act 2020 became law on 6 April 2022, and finally removed the assumption that there must be a guilty party in divorce suits. It allowed for a no-fault divorce whereby either or both spouses in a marriage could apply for a divorce, by stating that the marriage had broken down irretrievably without proving an additional reason or apportioning blame to either party. The Act also allowed for the dissolution of a civil partnership (which had been possible since the introduction of the Civil Partnership Act 2004) in a similar way to a marriage. These legislative changes reflected changing societal attitudes, perhaps most clearly demonstrated by the attendance of Queen Elizabeth II and Prince Charles at the wedding of Prince Harry to divorcee Meghan Markle in a Church of England marriage ceremony held at St George’s Chapel, Windsor in May 2018.  

In future blog posts we’ll explore some of the most interesting divorce cases from our research to show how husbands and wives were navigating their way through the process of divorce using the different grounds that were available. We’ll look at the allegations they were making, the type of evidence they were using, how successful they were, and the emotional impact their involvement in a divorce case may have had on them.  

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