Until 1857, divorce in England was available almost exclusively by act of Parliament or by the Church of England in the ecclesiastical courts (Cretney & Masson, 1990; Stetson, 1982). The Matrimonial Causes Act 1857 created a Court for Divorce and Matrimonial Causes and gave the court jurisdiction to consider and grant divorces. While the procedure changed, the substantive ground for divorce remained essentially the same: adultery (Cretney & Masson, 1990). Interestingly, a wife could not rely solely on adultery to seek a divorce; she had to allege some other marital offense as well (Stone, 1990). Despite the change in the locus of decision making from Parliament to the courts, divorce was still very difficult to obtain for those who were not wealthy.
Adultery remained the only legally recognized basis for divorce until the Matrimonial Causes Act 1937 added as additional fault grounds the following: cruelty, desertion for a continuous period of 3 years or more, and “incurable insanity.” Within a short time after enactment of the 1937 Act, it became clear that the fault-based system was unrealistic; an increasing number of divorcing couples were simply colluding and inventing grounds for divorce to fit the statute (Cretney & Masson, 1990; Stone, 1990). By 1951, a Royal Commission was assembled to consider a reform (Cretney & Masson, 1990). Members could not agree on what course to take, with one group urging abandonment of fault grounds and a move toward recognizing the idea of irremediable marital breakdown and the other seeking to maintain the status quo (Stone, 1990).
Reform came about in the mid-1960s when two groups considered the divorce law and issued influential recommendations. The Archbishop’s Group, formed by the Archbishop of Canterbury and including clerics and lay members of the Church of England, called for recognition of “irretrievable matrimonial breakdown” (Archbishop’s Group, 1966). The Law Commission, consisting of judges, lawyers, and legal scholars, agreed with the Archbishop’s Group that the time had arrived to allow divorce on faultless grounds (Law Commission, 1966) . The major difference between the two groups was the church group’s preference for a divorce procedure that relied upon extensive participation by judges and the secular group’s reluctance to further burden the judiciary (Glendon, 1989). The recommendations of the two groups ultimately formed the foundation for the Divorce Reform Act 1969.
The English Divorce Reform Act 1969 was a dramatic change and it proved influential in continental Europe and in the United States. With the Act, Parliament did not, however, actually abolish fault grounds for divorce. Section 1(1) of the Divorce Reform Act 1969 declares that, henceforth, the only basis for divorce would be “irretrievable breakdown.” Section 1(2), however, describes the five ways irretrievable breakdown can be proven and three are traditional fault grounds: adultery, desertion, and cruelty.
Liberal though it was, the Divorce Reform Act 1969 was cautious in important ways. Mutual consent divorce was available only after a couple had lived apart for 2 years unless the couple could show exceptional hardship; unilateral no-fault divorce required a 5-year separation unless the petitioner showed hardship or exceptional depravity by the respondent (Glendon, 1987). Even though substantial obstacles remained, many more couples in England and Wales sought divorces after the 1969 Act (Cretney ; Masson, 1990). Interestingly, though, most of these divorcing couples (more than two-thirds in 1984) have continued to rely on fault grounds, perhaps because this is the easier route to obtaining a divorce (Glendon, 1989).
The Divorce Reform Act 1969 required judges to inquire into the facts of each divorce petition. However, by the mid-1970s, serious inquests were rarely held in cases of uncontested divorce and it was typical for a divorce to be merely an administrative act performed by a clerk (Cretney ; Masson, 1990). Although the law provides English courts with the option of denying a divorce petition (used only by spouses who have been separated for at least 5 years) in cases where divorce would lead to “grave financial or other hardship,” divorces are seldom denied on this ground. This defence is rarely successful because the hardship must be shown to have resulted from the legal divorce itself, above and beyond any hardship resulting from the separation that has inevitably occurred before.
A 1984 amendment to the English divorce law decreased from 3 or 5 years to 1 year the required term of separation and eliminated the exception for hardship (Cretney ; Masson, 1990). Thus, divorce is commonly available after only a year’s separation, and, in some fault cases, even less (Glendon, 1989).
The progression to simpler divorce in England and Wales is not without its critics, perhaps because Britain has the highest divorce rate in Western Europe (Glendon, 1989). Freeman (1991a) suggests that, due to pressure from many who believe that liberal English divorce laws are leading to a crumbling of British and Welsh family life, there will likely be a more restrictive divorce law enacted in England in the near future. The Law Commission has recommended that couples be required to wait an extra year for a “period of consideration and reflection.” This period is designed to ensure that the marriage is indeed irreparable. To aid in their deliberation, couples would be encouraged to participate in counselling and mediation services.
There is a compelling case for reform to divorce law, particularly the removal of fault from the process. The Law Commission published comprehensive criticisms of the current law in 1988, and many stakeholders in family law continue to call for no-fault divorce.
Key criticisms are that the use fault increases conflict between the parties and encourages false or exaggerated claims which do not represent the real reason for the breakdown of the marriage. The behaviour fact is particularly criticised for increasing animosity and giving a potentially false sense of why the marriage broke down.
The historical context
The nub of the matter, acknowledged by the judges in each court, is the requirement for someone who wishes to divorce to cite one of five reasons: adultery, desertion, unreasonable behaviour, two years’ separation with the consent of both parties, or five years’ separation without consent. The law does not recognise unhappiness in a marriage as a reason to seek a divorce and, as it stands, only allows a judge to grant a divorce if, on the balance of probabilities “the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent”. In turn, this can only be established by applying the objective test of what would a “hypothetical, reasonable observer make of the allegations”? In response, Mrs Owens argued that a subjective test of how her husband’s cumulative behaviour impacted on her should be applied. The Court was sufficiently sympathetic to her argument that it allowed an appeal to the Supreme Court – which found its hands similarly tied by legislation that, when put the test, was found wanting.