The Changing Nature of UK Divorce Law

The following is a guest post by Kathryn McNickle, a foreign law intern working with Clare Feikert-Ahalt in the Global Legal Research Directorate, Law Library of Congress.

The Divorce, Dissolution and Separation Bill has begun to make its way through the House of Commons, where it enjoys cross-party support. If passed, it will make it much quicker for couples in England and Wales to have “no-fault divorces”, by removing required separation periods of at least two years, as well as removing the possibility of one partner challenging the decision to divorce. The bill will also introduce a minimum time frame of six months for the divorce process. The hope is that these measures will remove some of the conflict from the procedure. It is expected the changes will also apply to civil partnerships. The bill marks the latest in a progression of changes making separating easier for both parties.

Divorce law has evolved over the past three hundred years. Before 1700, there was virtually no means of divorcing in England; despite the reputation of much married Henry VIII, England remained the only Protestant country in Europe not to allow divorce (terminating a marriage to allow remarriage within the lifetime of the other spouse). The Church of England did allow separations a mensa et thoro, but these did not allow remarriage and were only granted in cases of adultery.

Parliament decided that the dissolution of existing marriage came under its remit in 1700. However, divorces were only granted in cases where the woman had committed adultery, unless the husband’s adulterous actions were “compounded by life-threatening cruelty,” such as incest. Between 1700 and 1749, only fourteen divorces were granted, which gradually increased, with 193 divorces obtained between 1800 and 1857. It was very expensive to get a divorce through Parliament and, as such, was generally an option only for the wealthy.

Following extensive Parliamentary debate and a Royal Commission, the Matrimonial Causes Act was passed in 1857. It created a court to grant divorces under similar circumstances as Parliament; a husband had to prove the wife’s adultery, while a wife could only obtain divorce if there was adultery alongside another offense, such as cruelty or desertion. This “double standard” was justified by fears that a child borne through adultery could inherit the husband’s property and by claims that women were naturally less lustful and therefore any adultery was more “sinful.”

Even after moving the power to the courts, rather than Parliament, access remained restricted to the wealthy, and England’s divorce rate remained very low compared to countries like the US. However, the Matrimonial Cause Act of 1878 enabled women to get protection from physically abusive husbands, although this was a judicial separation, not a divorce.

Dissatisfaction with the 1857 Act was soon apparent, but it was not until after World War I that the Matrimonial Causes Act 1923 made adultery by either party the sole ground for divorce. This was not just due to women’s increasing emancipation, but it was seen as a leveling-up of morals and aimed to prevent sinfulness amongst men. The bill was hotly debated, with arguments made that it would lead to a state of “camouflaged polygamy and polyandry.” Regardless, the bill passed, removing the double standard of previous legislation.

The Matrimonial Causes Act 1937 was a Private Member’s Bill put forward by satirist and MP, A. P. Herbert. As marriage began to be seen as a partnership of equals, the Act widened the grounds for divorce to include unlawful desertion for three or more years, cruelty, and incurable insanity. However, concessions were made to traditionalist pressures, such as an outlawing of divorce in the first three years of marriage, with some judicial discretion. Although divorces remained expensive, they rose significantly in number following the passing of the Act, although this was also associated with the effects of World War II.

The Divorce Reform Act 1969 made the sole ground for a petition of divorce, presented by either party, that the marriage has broken down irretrievably. This could be shown by one or more of four “facts”, adultery by either party; behavior from the respondent such that the petitioner could not reasonably be expected to live with them; desertion for two years; and separation for either two or five years, depending on whether both parties consent to the divorce. This bill was also subject to heated debate, labelled “Casanova’s Charter” by detractors who argued it would allow men to marry and leave an “innocent” wife in a perilous financial situation every five years. The Act passed, despite the controversy surrounding it, and again the number of divorces rose following the changes, with adultery and unreasonable behavior particularly being used to show an irretrievable breakdown of the marriage.

The Civil Partnership Act of 2004 allowed same-sex couples many of the same rights as married couples. The grounds to dissolve a civil partnership were largely similar to the grounds recognized in the Divorce Reform Act 1969. However, adultery was not one of the facts that could be used to show irretrievable breakdown, as adultery is defined as sexual intercourse between partners of the opposite sex. More recently, marriage has been opened up to partners of the same sex, while heterosexual couples will be able to obtain civil partnerships.

The Divorce, Dissolution and Separation Bill was introduced by the Government on June 13, 2019, following the Owens v. Owens case last year, in which the Supreme Court refused a divorce to a woman because her husband opposed it. Debates on the Bill have already raised concerns from some MPs that it will make getting a divorce too easy. The Justice Minister has admitted he expects to see a short-term spike in divorces but argues the reforms will make divorce law fit for the 21^st century by removing the requirements to blame one party or wait up to five years.