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A look back at how divorce has evolved 27/11/2023

In April 2022, the no-fault divorce was introduced in England and Wales after a long-fought campaign to set divorcing couples off on the right footing, starting with their divorce, but with the hope that they would remain amicable when dealing with division of assets and matters relating to children too.

Under the previous divorce system, divorcing couples would have to rely on coming up with a list of reasons why they could no longer live with their spouse or be forced to remain married to the other party for up to five years if the other party failed to consent to a divorce (see the case of Owens v Owens for more details). It is interesting to look back at the different reforms that led us to the position in which we find ourselves today.

Back in the times of Henry VIII for example, the Church was a very powerful entity. Marriage could only occur through the church, as could divorce, and it was generally deemed scandalous to get a divorce at that time. On the rare occasions that a divorce was granted by the church, it was done based on “a mensa et thoro” which means “from bed and board”. This was not a divorce as we know it today, but it was the closest thing in an era where marriage was expected to be for life. This process allowed the parties to live apart if there had been significant cruelty in the relationship, but they could not remarry as the marriage was not actually of itself dissolved.

In the eighteenth and the early part of the nineteenth century, a divorce could be granted under an Act of Parliament for the first time, but this option was only available to the rich. Those who could not afford it had to remain married. The Matrimonial Causes Act 1857 was the first generally applied divorce law in England and Wales.

Before 1914 divorce was very rare and was only available to the rich or those who could specifically prove that adultery or significant violence had occurred. According to statistics, in the first ten years of the twentieth century, there was just one divorce for every 450 marriages. As at 24 February 2023, the current divorce rate sits at 42%. According to the Office for National Statistics there were 85,770 marriages in England and Wales in 2020 which was down 61% from 219,850 in 2019 due to the restrictions imposed by COVID-19.

The First World War led to a change in society and, in particular, women’s place within it. This led to further reforms in divorce and for the first time under the Matrimonial Causes Act 1923 women and men were put on an equal footing, which had not been the case to that point. This meant that either party could petition for divorce on the grounds of adultery when previously only men could do so. However, this still had to be proved.

Another Matrimonial Causes Act came into play in 1937 which introduced further grounds under which parties could file a petition. This included cruelty, desertion, and incurable insanity, as well as the standard adultery ground. These grounds were known as matrimonial “offences” and the offences had to be proved by way of oral evidence. Also, the parties could not seek a divorce within the first three years of marriage.

Divorce at this time remained relatively rare and a source of shame to most. As recently as 1955 Tory minister Lord Salisbury threatened to resign if a Bill was passed in Parliament to allow Princess Margaret (then the Queen’s sister) to marry Group Captain Peter Townsend, a divorcee. The Lord got his wish and the two were never allowed to marry.

The Second World War led to further societal change, modernisation, and the further development of women as contributing members of society rather than simply wives and mothers. The war also led to a spike in divorce due to long periods of separation and the after-effects of war, the likes of which had never been experienced before.

The rise in divorces was becoming a concern to the Church and to Parliament. Even a Royal Commission set up in the 1950s could not come up with a solution. Eventually the Archbishop of Canterbury commissioned a report himself which demanded reform. This set about forging the way for parties to end their marriage if they could show that their marriage had broken down. The Divorce Reform Act of 1969 was introduced which then was consolidated into the Matrimonial Causes Act 1973 which forms the basis of the law on divorce to which we are all currently subject today.

The Reform Act added two further grounds for divorce by introducing a two year separation with the other party’s consent and a five year separation without consent. It also removed the idea of matrimonial “offences” and thus removed the notion that there was a bad party versus a good party, replacing it with the idea that the marriage had simply broken down.

With the change in divorce law, as well as the significant post-war shifts in society and expectations, particularly around women and their role, this led to an increase in divorce from 50,000 in 1971 to 150,000 ten years later.

The reforms also affected the procedure around divorce, meaning that parties no longer had to go to the High Court in London to get a divorce and could instead go to their local county court. In the 1970s the courts developed the “divorce on paper” process that we largely still use today.

The Family Law Act 1996 later came about but many of the divorce provisions within it have since been repealed. It is widely thought that the provisions in the Act failed to gather any kind of momentum due to the number of revisions and amendments they had to go through to pass a Conservative government who was still, even in these modern times, seeking to preserve the sanctity of marriage. Because of this, the Act was not fit for purpose and predominantly had to be shelved.

Some reform has been positive. The introduction of the Civil Partnership Act 2004 at first meant that same sex couples could both register a civil partnership but also dissolve them in much the same way as a divorcing couple. Today, opposite sex couples can also enter a civil partnership if they wish and can also dissolve it. Due to the later introduction of the Marriage (Same Sex Couples) Act 2013, same sex couples can also marry and divorce if they so wish.

The later Marriage and Civil Partnership (Minimum Age) Act 2022 came into force in early 2023 which raised the legal age of marriage from 16 years to 18 years.

The law as it currently stands is both an amalgamation of elements of the law which went before it as well as changes to society and its expectations. We now have equality for both men and women as well as same sex and opposite sex couples. We have a no-fault divorce, and we have online divorce applications which petitioners can apply for in their sole name or jointly with their spouse. We are in a much better position than we were in even a few years ago and we can thank all of those who went before us for helping to forge and formulate the law we currently have today.

For further information and advice on this issue, and other family law issues, please contact us for a free initial consultation on 01992 306 616 or 0207 956 2740 or email us.

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Manor Law Ltd, trading as Manor Law Family Solicitors, is a registered company in England and Wales - number 07977350, and is authorised and regulated by the Solicitors Regulation Authority - Hertford office SRA number 567506 and City of London office SRA number 568637. Copyright © Manor Law, 2016. All rights reserved.

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