History of Divorce

Divorce is perhaps the civil legal issue which most grabs the attention of modern society and one does not have to look far to see high profile media coverage of celebrity divorces and the intrigue surrounding them. Many people have a personal experience of divorce, either of their own marriage or of the marriage of a close relative or friend. Given that 42% of marriages in England and Wales now end by divorce and the average duration of marriages is 11.7 years (Office for National Statistics), it is surprising that divorce has only relatively recently become easier to obtain and for many centuries was first a legal and then a practical impossibility.

In the Anglo-Saxon period in England (pre-1066), there are examples of divorces being legitimate by consent only. It was the medieval interpretation of Christian scripture by Church scholars which led to the concept of marriage as unbreakable. For example, an extract of the Bible at Mark 10:2-12 states: “What God has joined together, let no one separate”.

Until the Matrimonial Causes Act 1857, the law of divorce in England and Wales was governed by Ecclesiastical law and was under the jurisdiction of the Church Courts. Broadly, the Church Courts would only declare a marriage a “nullity” (and not allow divorce) with the effect that a marriage was deemed to have never existed, rather than divorced. The grounds for a declaration of nullity were that there was no consent at the time of marriage, there were other grounds of incapacity or that the marriage could not be consummated due to impotency or frigidity on the part of one of the parties. A lack of consent could be proved in several ways. If it could be evidenced that one party faced undue pressure or was insane or generally there had been a mistake, the marriage could be declared a nullity. Alternatively, if the parties were too young, they were deemed to be incapable of giving valid consent to the marriage. The age of consent for an agreement to marry in the future was a mere 7 years old and generally the age of puberty applied for actually entering into a marriage (initially set at 12 years old for girls and 14 years old for boys). The minimum age for validly consenting to marriage was equalised for boys and girls and raised to 16 years old by the Age of Marriage Act 1929, although in England and Wales, you are required to have your parents’ consent to marry if you are 16 or 17 years old.

Incapacity could be shown by the fact that there had been a previous marriage with another spouse, the parties were within a certain degree of blood relationship or a certain degree of affinity relationships. Affinity meant for example that a man who had had sex with a woman’s sister was forbidden to marry that woman. The prohibited degrees of blood relationship always included marriage between a parent and their child and the modern law prohibits marriage in a myriad of blood relationship circumstances, for example marriage to the granddaughter of a former wife until both parties are over 21 years old and where the granddaughter until 18 years old had not been in a family relationship with the potential husband.

This doctrine of nullity bears similarities to the more modern principles of annulment, whereby a marriage can be annulled for several reasons and treated as if it never existed. A marriage can be annulled if the parties are closely related, one party is under 16 years old, one party is already married, the two parties have not had sex with each other since the start of the marriage, one party did not consent to the marriage, one party had a sexually transmitted infection/disease at the time of the marriage or the woman was pregnant by another man at the time of the marriage. An annulment can be applied for at any time after the marriage and the 1 year waiting period before applying for a divorce of a marriage does not apply.

The famous divorce case of Henry VIII in the 16th Century was a flexible interpretation of the Ecclesiastical law principles referred to above and was a key driver of divorce reform in 16th and 17th Century England and Wales. The Archbishop of Canterbury at the time of Henry VIII, Thomas Cranmer, suggested divorce should be allowed on the grounds of adultery, cruelty, desertion or bitter opposition. Over the course of the 16th and 17th centuries, several Acts of Parliament were passed permitting the divorce by wealthy nobles of their wives on the grounds of adultery and private members’ bills in Parliament became common to achieve these divorces. This avenue of divorce became open to less wealthy parties as it became common practice to bring your divorce case first in front of the Ecclesiastical Courts and which would then lead on to a petition to the House of Lords to pass the appropriate Act of Parliament. Adultery was therefore confirmed as a ground for divorce by the above convoluted process.

The Society for Promoting the Amendment of the Law in the 1850s published proposals suggesting that divorce should be dealt with in a separate Court and should be a cheaper process. These proposals were accepted and by the Matrimonial Causes Act 1857, the Court for Divorce and Matrimonial Causes came into existence and the Ecclesiastical jurisdiction over divorce was abolished. The 1857 reforms only changed procedure and adultery remained as the only ground available for divorce. If a wife was the party claiming a divorce, she had to prove cruelty or desertion, in addition to the act of adultery by her husband.

Abuse of the new procedure by wealthy Victorian families, combined with clashes between the Government of the time and the Church, meant that further reform was slow in coming. A Royal Commission in 1912 suggested that cruelty or 3 years’ desertion should be introduced as separate grounds for divorce and that the rights between wives and husbands should be equalised. The Church was opposed to anything that widened the possibility of divorce and the recommendations of the Royal Commission were defeated in 1914. A further Royal Commission in 1923 attempted the same reforms but only succeeded in equalising the rights between wives and husbands. As a matter of practice, married couples often contrived to stage an act of adultery by the husband to achieve a divorce ‘by consent’. In 1935 a committee within the Church finally agreed to the proposals originally suggested by the Royal Commission in 1912. Further reform suggestions were delayed until post-Second World War and in 1951 a bill was presented in Parliament to permit divorce by consent after separation for 7 years. A Royal Commission argued against this proposal in 1955, however Lord Walker in the arguments of that 1955 Royal Commission dissented and suggested divorce should be permitted where a marriage had irretrievably broken down. After a further 10 years, this approach was endorsed by the Archbishop of Canterbury and was brought into law by the Divorce Reform Act 1969.

The current position is set out in the Matrimonial Causes Act 1973 and the sole ground for divorce is that the marriage has irretrievably broken down. This breakdown can be proved by the fact of adultery by one of the parties, unreasonable (abusive) behaviour, 2 years’ separation if both parties consent, 2 years’ desertion or 5 years’ separation if only one party consents. Originally under the 1973 Act, the parties had to wait until 3 years into the marriage before a divorce could be applied for but this period was reduced to 1 year by the Matrimonial and Family Proceedings Act 1984.

Since 2004 in the United Kingdom, people of the same sex have been able to enter into civil partnerships and from 2014, same sex marriages have been lawful. Whilst the rights of same sex married couples are broadly aligned with those of opposite sex married couples, there are several surprising inequalities. Notably adultery as a ground for divorce can only be used by same sex married couples as sexual intercourse is defined as being between a man and a woman and for annulment, the ground of not having had sex with each other since the start of the marriage is not available for same sex married couples.

Following several highly publicised divorce cases, senior judicial figures in England and Wales have called for reform of ‘out-dated’ divorce laws, which are now almost 50 years’ old. The current grounds for divorce necessitate the proving of fault and suggested reforms revolve around introducing the concept of ‘no-fault’ divorces, with a focus on maintaining family and children relationships, as well as achieving more through mediation processes, rather than through the Court system. A ‘no-fault’ divorce reform was introduced into by Parliament in 2015 by way of a private members’ bill but this was not passed. The UK Government’s stated position is that it will consider all the evidence for divorce reform as part of its wider reforms of the family justice system but that the Government would not “rush to a conclusion” regarding divorce reform.

History of Treason

A traitor being hung, drawn and quartered.

Treason is perhaps the most infamous crime in English Legal History, due in part to the horrendous punishment that came with it but also due to its often strong political importance. The punishment that was often inflicted was the drawing of the traitor across rough ground by horse, he would then be hanged to within an inch of death, followed by being disembowelled, burnt, and beheaded. Your remaining carcass was cut into four pieces. The punishment of being hung, drawn and quartered has morbidly captured the public’s imagination for many centuries.

The core aspect of Treason was, and still is, betrayal. If you follow history back to the earliest Germanic tribes, a man who betrayed his kin to the enemy tribe was killed, often in a highly sacrificial manner. There are also significant Roman influences through Christianity, Judas was the ultimate betrayer, he betrayed his Lord Jesus Christ. The betrayal of your Lord, be that your King or your immediate Landlord was thus characterised as the worst of crimes.

Pre-13th Century Treason encompassed a wide range of activities. For example, these included fleeing from battle, plotting the death of your King or Lord, forging your Lord’s seal and committing adultery with the Lord’s wife. A particularly severe case is Peter of Wakefield being hanged for predicting John would no longer be King by next year.

Treason garnered significant political and economic importance due to the fact that a traitor’s land would be forfeited to the King, rather than to his Lord. If the criminal had just committed a normal felony, his lands would be forfeited to his immediate Landlord. The King and his justices thus wanted to expand the coverage of Treason, whereas the normal Lords wanted to keep it limited.

In the 13th Century and onward, a distinction began to emerge between High Treason and Petty Treason. Broadly, High Treason was an act of betrayal against your King, whereas Petty Treason was an act of betrayal against your immediate Lord. The latter crime came to encompass the murder by a wife of her husband or the murder of a Bishop. Indeed, the crime of Petty Treason disappeared in 1828 as it was downgraded to murder. It is interesting note that the benefit of clergy, which originally protected religious officials from prosecution outside of the non-religious courts, was held not to apply to High Treason.

The development of Treason was going off in several directions and was becoming unclear. Parliament thus enacted the Treason Act 1351 which laid out a definition of High Treason, which until then had been contained in case law. This statute’s main definition is still in force today, although thankfully the Crime and Disorder Act 1998 instituted a maximum punishment of life imprisonment, rather than death. For the history of capital punishment in the UK, please see my blog post here.

The Treason Act included such activities as planning the death of the King or Queen, or their eldest son. Moreover, it included committing adultery with the Queen or her eldest daughter. Among other things, it also included the killing of the Chancellor, Treasurer or Judges in the exercise of their duties.

William Joyce, in 1946, was the last person to be tried for and convicted of High Treason in the UK. He was said to have committed Treason due to his Nazi activities in the war and owed allegiance to the UK by having a UK passport, although he was not actually entitled to such a passport. His punishment was execution through hanging.

History of Capital Punishment

Hanging. The most popular method for the death penalty throughout English Legal History.

The legal history of capital punishment in the United Kingdom is an interesting one and ranges across many centuries from the extreme of having no crimes strictly punishable by death to a multitude and back to none. In early Norman times, the principles of the common law in relation to the punishment of crimes were very simple. If the crime was a misdemeanor (minor or petty offences) then the punishment was at the discretion of the justices of the court.

For felonies (serious offences) the criminal was put on the king’s mercy which usually involved the ordering of mutilation in the form of castration or blinding. This was seen as a mercy rather than imposing the ultimate punishment of death.

By the early 13th Century, a fixed penalty of death was imposed for almost all felonies. For treason, this was death by being hung, drawn and quartered and for other felonies, simply death by hanging. This fixed penalty was grossly inflexible and various methods were used to mitigate the sentence of death, until later reforms abolished it. These methods included Sanctuary (my post on which can be found here), Benefit of Clergy, Pardons and Jury Mitigation. Later blog posts will deal with the latter three topics.

This state of affairs continued for some time. The expertise of the legal profession was directed towards thinking of incredible ways to avoid the death penalty, rather than reform it. Still by 1688 there were 50 offences within statute law that carried a death sentence, this rose to 220 by the the late 18th Century. These offences were wide-ranging and even included ‘being in the company of gypsies for one month’. It is a testament to the above mentioned methods of avoidance that, between 1770 and 1830, 35,000 death sentences were given but only 7,000 people were executed.

The legal reformer Sir Samuel Romilly KC, also responsible for calling for the abolition of slavery, succeeded in having the death penalty abolished from a mere two offences, namely pick-pocketing and stealing from bleaching grounds.

A year after Sir Romilly’s death in 1818, a Parliamentary select committee looking at the issue of the death penalty led to several statutes that slowly, and in a piecemeal fashion, abolished the death penalty from many offences.

By the 1860s, there were only several offences that still attracted the death penalty. These were murder, treason, piracy, and arson in naval dockyards. This remained the same until 1957 when difficult cases arose as regards capital punishment for murder. It led to the introduction of the Homicide Act 1957 which suspended the practice and the Murder (Abolition of Death Penalty) Act 1965 which abolished it entirely. Death as a punishment for Arson in naval dockyards was repealed by the Criminal Damage Act 1971.

Although beheading was removed as a potential punishment for treason in 1973, hanging remained until 1998 when the Crime and Disorder Act 1998 abolished some of the last remnants of capital punishment in the UK, with the abolition of the punishment for treason and piracy.

The last remnant of the death penalty in the UK (the punishment existed within military jurisdiction during wartime) was abolished by the coming into force of the Human Rights Act 1998. Since 2004, the UK has been signed up to the 13th Protocol of the European Convention on Human Rights which prohibits the death penalty in any circumstances. It would be impossible for the UK to bring in laws to reinstate the death penalty unless they were to formally withdraw from the Convention.

History of Burglary

An array of historical Burglar’s tools.

Burglary is a crime which has changed significantly over the years but in all its forms has always reflected the seriousness of breaking into a building, or part thereof, and the damage that can cause to both people and property.

 

In Anglo-Saxon times, the then equivalent of Burglary was known as husbryce which literally meant ‘house-breach’. However, its definition was geared more towards a person having caused injury to another in the process of an armed raid on a town.

Up until the mid-15th Century, breaking into a building does not appear as a separate offence in itself, it only appears in the courts as an aggravating factor. It could turn a petty theft into a felony for which you could be sentenced to death.

By the 1450s, Burglary appeared as its own offence and could be committed even if nothing had been stolen from the building, all there needed to be was an intent to steal something. It was at this time that the offence first started to be known as Burglary, rather than house-breaching/breaking or criminal invasion of a building. For an early example of a Burglary in 1674, please see this case.

Burglary of the 15th Century had two elements that seem unusual to us now. Firstly, it was an essential requirement that someone was in the building at the time the burglary took place and secondly, the burglary had to take place at night. If a de facto burglary was carried out in the daytime, it would only be trespass at common law and not a felony offence.

The second element led to some interesting judge discussion on what constituted night. Originally, a 1505 case set the definition as after sunset and before sunrise but this led to people being able to commit Burglary in twilight conditions. This lasted until a case in 1606 where judges set the test of whether a man’s face was discernible.

In 1837 a definition of night was made so arbitrary that it could be proved in any case but it was not officially repealed until the Theft Act 1968, where the nocturnal element was finally abolished from Burglary. The requirement of someone being in the building at the time of the Burglary had been abolished earlier with several statutes beginning in 1547.

The current law on Burglary is to be found in ss. 9 and 10 of the Theft Act 1968. Section 9 lays out two species of burglary that can be committed, s.9(1)(a) is where a person enters the building, or part thereof, as a trespasser with intent to commit theft, GBH or criminal damage to the building and s.9(1)(b) is where a person enters the building, or part thereof, as a trespasser and actually commits theft or GBH. A person can be sentenced to a maximum of 14 years in prison for a s.9 burglary.

Section 10 lays out a new offence of Aggravated Burglary where a person commits burglary whilst carrying a firearm, imitation firearm or certain weapons of offence defined in the section. This offence carries a maximum penalty of life imprisonment.