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First for Divorce – Then and Now
With Breeze and Wyles Solicitors Ltd celebrating its Centenary year we start to reminisce over the bygone years and wonder just how much things have changed and what our predecessors would make of the world today.
We are in the service business of law, an area which even during the period that I have been practising has seen vast changes. Within family law this has included an increasing emphasis upon alternatives to court, changes to how child maintenance are calculated and the organisations able to deal with the same, the introduction of civil partnerships, legalisation of gay marriages and the introduction of the Single Family Court.
However, when it comes to divorce, the rules and the procedure have largely remained untouched since before I was born. Current divorces are dealt with under the Matrimonial Causes Act 1973. This provides that a divorce petition can be presented to the court on the basis that the marriage has irretrievably broken down. In order to persuade the court that the marriage has broken down irretrievably the applicant must establish one of five facts; those are adultery, unreasonable behaviour, two years separation with the spouses consent, desertion and 5 years separation.
It is largely a paper exercise as a hearing is only required when proceedings are defended, which is rare, or when it is the Respondent and not the Applicant making the application for the final order (Decree Absolute).
It is when you consider things over a much longer period that you realise just how much things have changed. In the 1800’s an unhappily married couple had just three options each controlled by the church.
1) Nulity on the basis of impotence, insanity or incest. This rendered any children born illegitimate but the parties were allowed to remarry.
2) Adultery, Sodomy or Physical violence allowed the parties to separate but they could not remarry.
3) The parties separate and then sue for adultery. If successful the parties could then petition parliament for a divorce.
This was an expensive and very long process and quite apart from the difficulty of the procedure and grounds for divorce the wife had virtually no rights. Upon marriage any assets she owned automatically passed to the husband, the children belonged to the husband and would stay with him, the wife could be excluded from the family home without an order and if she was beaten by him there was very little she could do about it.
In 1827, Caroline Norton, the grand- daughter of playwright Richard Sheridan, married the MP for Guilford, George Norton. It was a very unhappy marriage as the couple disagreed about many things and Caroline was regularly brutally beaten by her husband. She left him twice but returned both times for the sake of the children. George alleged that she was having an affair with the Home Secretary Lord Melbourne and sued the Home Secretary for adultery but failed as there was no evidence and so he responded by forcing Caroline out of the home and refusing to allow her to see her children.
Caroline naturally felt aggrieved as to what had happened and the lack of help available to her and embarked on a campaign which would result in the first steps toward a revolution not only in relation to divorce but also women’s rights in relation to the children and finances.
In 1839, she persuaded parliament with the assistance of a sympathetic MP to pass a law allowing mothers who had not committed adultery to seek the right of custody of children under the age of 7. Not content with this she then sought further changes and in 1858 The Matrimonial Causes Act 1957 became law.
This act took the responsibility for divorce from the church and gave it to a newly formed civil court. Men could apply for divorce on the basis of the wife’s proven adultery. Women could apply for divorce on the same ground so long as they could also prove physical cruelty, incest, rape, sodomy, bestiality, bigamy or 2 years desertion. Women also obtained some rights in relation to inheritances and investments.
Further changes came by way of the Infant Custody Acts and the Married Women’s Property Acts gave women back their rights in relation to finances so that they were in the same position as unmarried women. After this point, the laws remained largely unchanged until after Word War 1 and a world in which attitudes towards life, promiscuity and marriage had changed significantly.
In 1923 the Matrimonial Causes Act was made law which put the parties on an equal footing allowing either husband or wife to issue divorce proceedings on the basis of the other’s proven adultery and made divorce more accessible and in 1937 the additional grounds of cruelty, desertion, incurable insanity were made available. These grounds had to be proven at a hearing where the court would hear evidence.
It was not until the 1960’s that the laws were changed further with the Matrimonial Property Act giving recognition to the contribution of women in looking after the home and the Divorce Reform Act 1969 later consolidated in the Matrimonial Causes Act 1973 setting out the current grounds and procedure for divorce.
Caroline Norton passed away in 1877 and I suspect that she could have never have guessed or even dreamed about the far reaching changes that the future held. The changes have certainly been significant and divorce more easily accessible. However, I suspect that some may well argue that the changes have diminished the meaning of marriage or gone too far with fathers in particular sometimes facing a significant struggle to see their children despite being told that they have ‘equal’ rights. We shall have to see what the next 100 years has in store.
Karen Johnson – (Associate Solicitor and Family Mediator) – A Graduate of the University of East Anglia who then completed her Legal Practice Course at the College of Law in London and then Qualified as a Solicitor in 2002 working in a local High Street Firm before Joining Breeze & Wyles Solicitors in 2009 and becoming an Associate with the firm in 2011.
Karen is a highly skilled and experienced Family Solicitor with in excess of 10 years experience of working in Family Law. She is a Resolution Accredited Specialist in the fields of Domestic Violence and Financial Matters. Karen is additionally a Family Mediator trained by and a member of the Family Mediators Association (The FMA) an association with over 20 years experience of Family Mediation.