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History of Divorce Law

Until the mid-nineteenth century, the law largely adopted the Christian view of marriage as an indissoluble lifelong union. The ecclesiastical courts could grant a divorce a mensa et thoro, but this was more like a judicial separation than a divorce: the parties were free to live apart but could not marry again. This apart, the only way of obtaining a divorce was by a private Act of Parliament, and this lengthy and expensive procedure was available to very few people. From the first such Act, promoted by the Duke of Norfolk in 1700, only 317 Acts were passed (nearly all at the husband's instigation) in the next 150 years.

The first liberalisation came in the Matrimonial Causes Act 1857, which enabled the Court of Divorce and Matrimonial Causes to grant a divorce where the petitioner could prove not only that the respondent had committed adultery, but also that there had been no collusion or condonation. This was difficult even for a male petitioner, but a wife had to prove aggravated adultery - that is, adultery plus incest, cruelty, bigamy, sodomy or desertion. This extra requirement was abolished in 1923, but adultery (treated as a "matrimonial offence") remained the only ground of divorce, and could be defeated by any evidence of collusion between the parties.

The Matrimonial Causes Act 1937, based on a private members' bill introduced by A P Herbert, introduced three further grounds for divorce: cruelty, desertion for at least three years, and incurable insanity. However, the emphasis was still on proving a matrimonial offence by the respondent (except in the case of insanity), and condonation and connivance remained as bars. There was also a bar on any divorce within the first three years of marriage.

Flaws in the revised law soon became apparent. First, it seemed wrong to many people that the law should insist on preserving in name a marriage which no longer existed in any real sense. Second, the emphasis on proving a matrimonial offence seemed out of place when so many marriages broke down because of minor faults in both parties. The enforced separation of war service inevitably led to many marriages' failing, and thus highlighted these problems. And third, the common practices employed to satisfy the requirements of the Act - the overnight stay in a Brighton hotel, and so on - brought the law as a whole into disrepute.

Until 1969 it was impossible for a "guilty" spouse to divorce an "innocent" partner. As long as the innocent spouse took care not to be caught in adultery, he or she could effectively block the other's divorce and remarriage. Where both parties had committed adultery - not an uncommon situation where the marriage had broken down - the petitioner had to give full details of her own misdemeanours and ask the court to exercise its discretion in her favour.

It was not until the mid-1960s, however, that parallel reports by the Law Commission and the Church of England led to fundamental changes. The aims of the reforms, as set out by the Law Commission (Cmnd 3123, 1966), were to buttress, rather than undermine, the stability of marriage; and when, regrettably, a marriage has irretrievably broken down, to enable the empty legal shell to be destroyed with the maximum fairness and the minimum bitterness, distress and humiliation.

The Law Commission therefore concluded that the concept of the matrimonial offence should be removed, and agreed with the Archbishop's committee that the irretrievable breakdown of the marriage should be the sole criterion. They proposed that such a breakdown should be proved by any one of the "five facts" set out later, and that the law should encourage reconciliation, prevent injustice to economically vulnerable spouses, and protect children. These recommendations were enacted in the Divorce Reform Act 1969, and (with some fairly minor changes) remain in force as the underlying principles of divorce law today.

Alongside these changes in substantive law have come changes in procedure. When the responsibility for divorce was transferred from the ecclesiastical to the civil courts, it was still regarded as a serious matter to be dealt with only by High Court judges sitting in London. Only from 1967 could undefended divorces be heard in specially designated County Courts, and defended divorces continued to be dealt with in the High Court. All divorce petitions were still heard in open court, with the petitioner expected to give oral evidence to prove the adultery, cruelty or other facts alleged. This was distressing for the parties, expensive for the Legal Aid fund, and very time-consuming for the judges even though an undefended divorce case typically took no more than ten minutes.

Between 1973 and 1977 a "special procedure" was introduced to allow undefended divorces to be granted with simplicity, speed and economy. Under this procedure, the district judge examines the papers and affidavits submitted by the parties. Unless these give any reason for doubting that the marriage has irretrievably broken down, the district judge grants a decree of divorce with a minimum of formality - the parties need not even attend - and the only public part of the trial is the announcement of the decree in open court. This "special procedure" has now become the norm, and defended divorces are nowadays very rare: in 1990 there were only four decrees of divorce following a defended action, compared with 150 000 granted through the "special procedure".

Dackham v Dackham [1987] 2 FLR 358, CA
H and W were granted a decree nisi and both applied for ancillary relief. The registrar mistakenly thought he could not hear their applications unless the decree was made absolute, so he granted a decree absolute on the spot and made an order involving the transfer of W's interest in the marital home to H. When H died shortly afterwards, W appealed against the order, and the County Court judge and the Court of Appeal allowed her appeal. The registrar had not complied with various mandatory requirements for making a decree absolute (e.g. searching the court minutes for any warnings), and the decree and subsequent order were consequently void.

Callaghan v Hanson-Fox [1991] 2 FLR 519, Brown P
A man P, whose former wife died intestate some ten years after their divorce, claimed the divorce decree had been obtained by fraud and was therefore invalid. Dismissing his claim, the judge said a decree absolute is unimpeachable unless it was granted ultra vires or by an irregular procedure.

W v W (Decree absolute) (1998) Times 31/3/98, Bracewell J
H and W separated and H left the country leaving very few assets behind him. W began divorce proceedings and was granted a decree nisi; she was awarded maintenance pending suit, but H did not cooperate in ancillary proceedings to determine the distribution of capital. Eighteen months later H (who wanted to marry again) was granted leave to apply to have the decree made absolute, but W's appeal succeeded. If H's application were granted, said the judge, there was a very real risk that he would wash his hands of the matter and thereby prejudice W's position in the ancillary proceedings.

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