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Family Law Blog

Comment on divorce & family law 

Divorce in history – how much has changed?

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Divorce law history.

Since divorce was first introduced into English law in the time of Henry VIII there have been some significant changes. Yet people are still often heard to moan about the arcane nature of divorce proceedings.

As a divorce and family law specialist, I have often heard clients bemoan the divorce process. It’s too slow. It’s too expensive. It’s not fair. The thing is, compared to a few hundred years ago, we don’t really know how lucky we are to have the legal framework for divorce that we now have.

Henry VII is credited as being the father of divorce. It was he who broke with Rome in the first place so he could divorce without papal approval but still, at that time, church courts retained the power to dissolve marriages. I was reading the other day about Catherine of Aragon’s letter pleading with the Pope to intervene in her separation from Henry VIII going under the hammer. It was interesting that, even then, she recognised in divorce: “There is no decision that can be made that will not bring a great evil in the future.” I’m sure many divorced couples would agree with that statement.

Divorce for all?

It was only the 1857 Matrimonial Causes Act which first allowed ordinary people to divorce. Before then, divorce was largely open only to men, and had to be granted by an Act of Parliament. Some people believe divorce is excessively expensive these days, but can you imagine what the cost would be if you had to get it onto the running order to be approved by MPs in Westminster? I guess it would dramatically bring down the divorce rate! 

There were some other staggering differences as well. Back then, divorces were still heard in public in open court. We tend to advise divorcing couples to stay out of court to keep down costs but there was clearly no choice in times gone by so it meant divorce was only for the very wealthy. Also, a married women’s property automatically became her husband’s and, upon divorce, children remained the property of their father. This meant some mothers were prevented from seeing their offspring. Today, the law is very much focused on shared parenting with both mum and dad expected to have a role in the children’s upbringing. So, in some ways at least, the law has come a long way.

Grounds for divorce

Things begin to look a little more familiar after the 1857 Matrimonial Causes Act but it was still stacked in favour of the man. Under the new law, women divorcing on the grounds of adultery not only had to prove their husbands had been unfaithful, but also had to prove additional faults, which included cruelty, rape and incest. Men, of course, just had to prove their wives had been unfaithful and in an age before cameras, videos and smartphones, this was often a tricky task.

A private members' bill in 1923 made it easier for women to petition for divorce for adultery – but it still had to be proved. In 1937, the law was changed and divorce was allowed on other grounds, including drunkenness, insanity and desertion, although there was a bar on petitions for the first three years of the marriage. It would be interesting to see how widely drunkenness and insanity were used if they were still grounds for divorce in 2015!

Kathryn McTaggart
Divorce & family solicitor, Cardiff

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