History of Divorce and Domestic Abuse

The Divorce, Dissolution and Separation Act 2022 changed one of the founding principles of English divorce law: that there was always an innocent and a guilty party. This was particularly important for wives petitioning for divorce in the nineteenth and early twentieth century as they had to prove not only that their husband had committed adultery, but that he was also guilty of inflicting an additional marital offence such as cruelty, desertion (of two years or more), incestuous adultery, sodomy, bestiality, or rape (though not of the wife as this was a legal impossibility).

Cruelty and desertion were by far the most commonly cited aggravating offences, and although the tolerance for such behaviours was significantly higher than it is today, case law indicated that physical violence was not an essential characteristic of cruelty and there is evidence that the Victorian divorce court recognised that it could potentially comprise of physical, emotional, financial, and sexual mistreatment. It was not until the case of Russell v Russell in 1890 that a husband first accused his wife of abuse, which highlights the importance of understanding the gendered nature and history of domestic abuse. This research strand will examine cases citing cruelty to see how cultural and social factors exerted a strong influence on how legislation was interpreted.