divorce

divorce. Since the Roman catholic church has never recognized divorce, it was not available in Britain until after the Reformation. Henry VIII was technically never divorced—his marriages to Catherine of Aragon and Anne of Cleves were annulled—and thereafter England moved very cautiously indeed. Separation from bed and board was permissible in certain circumstances but without the right to remarry. But after Parliament in 1670 had passed an Act to allow Lord Roos to remarry after the notorious adultery of his wife, a loophole was opened. The number of divorces remained very small. The Church of England retained the ecclesiastical courts from the previous era and the case for ending a marriage had to satisfy canon law. Once the church courts had agreed that the marriage should end, only a private Act of Parliament could give effect to property settlements and issues of succession. Such Acts were expensive, faced a real possibility of failing to pass, and exposed the details of personal family relationships to public knowledge.

With the costs of a private Act so high, it is likely that many unhappy marriages endured or that informal and undocumented separations took place. The wish to divorce appeared to be present at all social levels. For example, there are references in the 16th cent. and later to the curiosity of ‘wife sales’ amongst the poor, an illegal practice fictionalized in Thomas Hardy's The Mayor of Casterbridge.

Divorce, although still expensive, became more generally accessible with the Matrimonial Causes Act of 1857, which applied to England and Wales. This Act incorporated the recommendations of the Campbell Commission, which had investigated the law relating to marriage. The Act established a Court for Divorce and Matrimonial Causes and allowed divorce on specified grounds. A husband could divorce on the grounds of adultery by a wife, but a wife had to prove that her husband had committed adultery aggravated by desertion, cruelty, incest, rape, sodomy, or bestiality before she could divorce. For those who could not afford to go to the new court, escape from the effects of a violent marriage or desertion was provided by an Act of 1878 which gave magistrates' courts power to recognize formal separation. But by 1913 there were still very few divorces—only 577 in England and Wales.

After the Reformation the situation in Scotland developed differently. Husbands and wives had equal access to divorce and procedures for rescinding a marriage could be initiated in the sheriff court by resident Scots. In the mid-19th cent. the costs of such a divorce were between £20 and £30.

Equality between the sexes was recognized by the Divorce Act of 1923, which made the grounds for divorce the same for both spouses. As a consequence, the number of divorces increased, although remaining relatively small. A major change towards lowering the cost of legal proceedings was incorporated into the Divorce Act of 1937, which also added habitual drunkenness and insanity to the grounds for divorce. Again the number of divorces increased and rose even higher after the Second World War, when those seeking divorce could apply for financial help under the legal aid scheme of 1948.

Until the Divorce Act of 1971 two features characterized divorce proceedings: the guilt of one partner had to be proved, and both partners had to agree to pursuing a divorce. The 1971 Act allowed divorce on the grounds of the irredeemable breakdown of the marriage, and the initiation of divorce proceedings by one partner even against the opposition of the other. The Act also sought to safeguard the welfare of any children of the divorcing couple.

After 1971 the number of divorces rose sharply and continuously so that, by the 1990s, it was estimated that one marriage in three would end in divorce. The Marriage Act of 1996 sought to distinguish between the end of marriages of short duration and those of greater length. The former could be ended very rapidly with few long-term obligations between the partners. The legislation attempted to provide the latter with greater long-term protection in respect of property including resources such as pensions.

Ian John Ernest Keil