Until 1857, a mere 160 years ago, in order to obtain a divorce you needed an actual Act of Parliament. There were two alternatives to this: have the Church declare the marriage was a nullity, but this rendered any children as being illegitimate; or prove there had been adultery, sodomy or physical violence, but this did not allow either spouse to remarry. This meant that a divorce was fairly exclusive to wealthy members of society. This changed in 1857 when, with the first in a series of Acts entitled the Matrimonial Causes Act, the ability to grant a divorce moved from the Church to the civil courts. But there was a bias towards the husband, who could simply petition for divorce on the grounds of the wife’s adultery. A wife had to prove her husband’s adultery was incestuous or that he had committed bigamy or cruelty. The mind set that we still see today in proving “fault” for the breakdown of a marriage was already being set down by statute.
Over the next few decades, Acts of Parliament introduced a wife’s ability to retain her own personal wealth, capital and wages on divorce, and evened out the playing field when it came to the custody of children following divorce, but still the pervasive blaming culture persisted.
It was not until 1923, following the groundswell of movement after the First World War and the role of women in society was beginning to be recognised, that the MCA was updated to allow women to petition for divorce simply on the grounds of their husband’s adultery. The “deed” still had to be proven, but the law was starting to recognise a woman’s equal rights to end a marriage. In 1937 three further grounds for the petition were introduced: cruelty, desertion and incurable insanity. These still needed to be proved, and in the courts in London, lurid tales of adultery and behaviour were reported, some being deemed too shocking for female stenographers to be present in court when the details were presented.
Following the Second World War, with soldiers returning from the war, couples realised they had married in haste. The number of divorces rose from just 800 in 1940/41, to 38,000 in 1945 and over 68,000 in 1947. The law failed to keep up with these changes, with a Royal Commission in the 1950s failing to reform the laws that had changed little for nearly a century. Ironically, it was the Archbishop of Canterbury who, in the 1960s, pushed for a reform of divorce laws, allowing couples to divorce if they could simply show that the marriage had broken down. The Divorce Reform Act 1969 set down the grounds for divorce that we still use today, having been incorporated into the MCA 1973 that all Family Practitioners are familiar with. Although introducing “no fault” grounds based on periods of separation, the court still expected divorcing couples to say what led to the separation. For many, the waiting periods were unacceptable, leading many to use the more acrimonious grounds to escape from loveless marriages.
This means that we are still using Statute shaped by social behaviours from shortly after the Second World War, and laws that will be 50 years old next year. It is no surprise we have yet to dispel the combative approach to divorce.
The 1996 Family Law Act was the first Act in a quarter of a century to set out revisions to the grounds for divorce, effectively introducing a truly “no fault” concept. The process followed a timetable, allowing for an Information Meeting, the filing of a statement of breakdown with the court and a further period of reflection followed by the divorce being finalised. The whole process would take of at least 15 months for those couples with children under the age of 16, or 9 months for couples without.
This part of the Act was never brought into force – amendments and compromises by a government that still believed in the sanctity of marriage meant it became unwieldy and not fit for purpose and it was eventually repealed even before being enacted and an opportunity was lost.
A renewed appetite for no fault divorce has recently seen public discussions and sympathy from the government. The high profile case of Mrs Owens shows that we have not moved forwards from the 1960s when the Archbishop of Canterbury observed that the law should not be used to keep people in bad marriages against their will.
With the introduction of “no fault” divorce, it would be less adversarial, but would it be cheaper? We already see companies offering online divorces for £35 – failing to say that this just provides the blank forms that need to be completed and that the court fee, currently £550, still needs to be paid. Despite the simplification and wider availability of divorce forms, many people still choose to get help and advice from a solicitor before starting the process, and there is no indication this will change with the introduction of an alternative or additional ground for divorce.
And what about the financial aspects of the separation itself? A no fault divorce will not necessarily lead to a simple division of the matrimonial assets, after all it is already the case that the grounds for the divorce rarely influence any financial settlement. It may be inescapable that divorcing couples seek legal advice and assistance. It may still be unavoidable that conflict arises.
So, what will the future hold for divorce laws and how quickly are we likely to see changes? With parliament currently absorbed by Brexit, the uncertainty in the governments’ hold on a majority and their reliance on the ultra-Conservative DUP, we may not see any changes during the life of this parliament. Despite the drafting and introduction of the 1996 Family Law Act having taken place during a Conservative government, it was parliament led by new Labour from 1997 that failed to bring the reformed divorce laws into force.
Does any major party in the UK government have the time or the appetite to change such a fundamental part of our social and cultural makeup? Will it take social upheaval to once again persuade parliament that the time is right for change, as it did after both major conflicts in the 20th Century?
What form would a “no fault” divorce take? Did the proposals of the 1996 FLA go far enough for today’s society and does “no fault” mean “instant” to a society where everything moves and happens much quicker than it did 20 years ago when the last proposals were made, let alone the 50 years since the law itself last changed?
And who will be the driving force behind reform – would a party seeking election adopt this as a populist policy, or would it be left to a private members bill with all that entails, to introduce such a fundamental change?
Only time will tell, but let us hope it doesn’t take another 50 years to see a significant change shaped to how society, rather than parliament, views the sanctity of marriage and the ease with which it can be ended.