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.

BOOK RECOMMENDATIONS: Landmark Cases in Criminal Law & Landmark Cases in Public Law

Landmark Cases in Criminal Law

Edited by Phil Handler, Henry Mares and Ian Williams

Criminal cases raise difficult normative and legal questions, and are often a consequence of compelling human drama. In this collection, expert authors place leading cases in criminal law in their historical and legal contexts, highlighting their significance both in the past and for the present.

The cases in this volume range from the fifteenth to the twenty-first century. Many of them are well known to modern criminal lawyers and students; others are overlooked landmarks that deserve reconsideration. The essays, often based on extensive and original archival research, range over a wide spectrum of criminal law, covering procedure and doctrine, statute and common law, individual offences and general principles. Together, the essays explore common themes, including the scope of criminal law and criminalisation, the role of the jury, and the causes of change in criminal law.

Philip Handler is a Senior Lecturer in the School of Law at the University of Manchester.

Henry Mares is John Thornely Fellow, and Director of Studies in Law at Sidney Sussex College, Cambridge.

Ian Williams is a Senior Lecturer in the Faculty of Laws at University College London.

May 2017   |   9781849466899   |   384pp  |   Hardback   |   RSP: £80

Discount Price: £64

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Landmark Cases in Public Law

Edited by Satvinder Juss and Maurice Sunkin

Landmark Cases in Public Law answers the need for an historical examination of the leading cases in this field, an examination which is largely absent from the standard textbooks and journal articles of the day. Adopting a contextualised historical approach, this collection of essays by leading specialists in the field provides both an explanation of the importance and impact of the chosen decisions, as well as doctrinal analysis. This approach enables each author to throw light on the driving forces behind the judicial outcomes, and shows how the final reasoning of the court was ultimately as much dependent upon such human factors as the attitudes, conduct, and personalities of the parties, their witnesses, their counsel, and the judges, as the drive to seek legal realignment with the political developments that were widely perceived to be taking place. In this way, this form of analysis provides an exposition of the true stories behind these landmark cases in public law.

Satvinder Juss is a Professor of Law at King’s College London.

Maurice Sunkin is Professor of Public Law and Socio-Legal Studies at the University of Essex.

June 2017   |    9781849466035   |   376pp  |   Hardback  |   RSP: £80

Discount Price: £64

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The Right to Vote, Women’s Suffrage, and Tumultuous Petitions

Historic Parliament

The UK’s General Election on 8 June 2017 provides a compelling backdrop for a discussion of the history of voting rights in Parliamentary elections. In particular, the struggle of women to obtain the right to vote holds a unique place in English Legal History and is worthy of discussion.

Following the Battles of Lewes in 1264 and the defeat of royal forces, Simon de Montfort (Earl of Leicester) brought together the English Parliament of 1265 consisting of, amongst others, two representatives (Knights) from each County, with the insistence that such representatives be elected. Although de Montfort was killed at the Battle of Evesham later in 1265, the idea of elected Members of Parliament persisted.

In the following two centuries, there is some debate surrounding who could exercise the right to vote in the Counties, although it is probable that all house owners resident in the County could do so, both male and female. This state of affairs continued until the implementation of the Electors of Knights of the Shire Act 1432 by Henry VI (reciting and reiterating an earlier Act of 1430) which stated that only landowners whose land attracted an annual rent of at least £2 were eligible to vote in Parliamentary elections. Although the 1432 Act did not limit the vote to men, male-only voting became customary as an extension of the social norm of men being perceived to be best placed to protect women’s interests.

Those who owned land in multiple Counties with the required value of £2 could vote multiple times, providing a powerful election tool for the wealthy landowners of the time. It was not until the Representation of the People Act 1832 that the right to vote was explicitly restricted to men, specifying ‘male persons’ in the Act itself. The 1832 Act restricted the vote to men who occupied land to the value of £10 which excluded approximately 85% of men and, of course, 100% of women. In 1780, only 214,000 people in England had the right to vote which was only 3% of the total population of 8,000,000. This number had only increased to 366,000 by 1831. The 1832 reforms did little to change the situation. Further Representation of the People Acts in 1867 and 1884 substantially increased the number of voters by extending male suffrage to all house owners. This still did not achieve universal male suffrage.

In the intervening centuries, some wealthier women landowners had voted in Parliamentary elections and there is evidence of such women appointing male proxies to vote on their behalf. Great publicity was made of the restrictions of the 1832 Act when, in 1867, Lily Maxwell voted in her local Parliamentary by-election. Ms Maxwell had been entered on the electoral register by mistake as she met the property value requirements. Ms Maxwell’s vote was later declared illegal by the Court of Common Pleas.

Although women’s suffrage was a political topic before and after 1832 Act (with the influential jurist Jeremy Bentham calling for the right to vote for women in 1817), the National Society for Women’s Suffrage was not established until 1872 and the eventually more militant organisation of the Women’s Social and Political Union was established by the Pankhursts in 1903.

Despite being well known for militant action, the suffragettes had carried out a great number of peaceful attempts to publicise the struggle for women’s suffrage. The militant action was largely in response to these peaceful attempts being ignored and undermined by men in power. Two of these peaceful attempts in particular are fascinating highlights in English Legal History.

Emmeline Pankhurst

Firstly, in 1908, a Mr Muskett was successfully prosecuting a group of suffragettes in the Westminster Police Court. The group were sentenced to two months in prison and a £5 fine, a common punishment that was levied many times against the suffragettes. Mr Muskett warned the group that if they offended again, he would seek to use the long dormant Tumultuous Petitioning Act 1661 against them. The 1661 Act was a remnant from the time of Charles II and stated that a group of no larger than 10 people were allowed to petition the monarch or the House of Commons. If a group larger than 10 did so, they were liable to a sentence of 3 months in prison. The 1661 Act was a response to the many violent petitions brought outside the House of Commons towards the climax of the English Civil War in 1651 and which led to the execution of Charles I. The right to petition the Monarch and the House of Commons is a long established right in English Legal History and stretches back at least to the time of Henry III in the 13th Century.

The right to petition in this way was enshrined in the Bill of Rights 1689 which was seen by some as a de facto repeal of the 1661 Act. Unfortunately, the 1661 Act was not formally repealed until the implementation of the Public Order Act 1986.

Emmeline Pankhurst wished to test Mr Muskett’s assertion and the day after the successful prosecution above, she brought a group of 13 suffragettes to Parliament to petition. A prosecution under the 1661 Act would require a full trial before a jury (something the suffragettes desperately wanted as many members of the public were sympathetic to the cause of women’s suffrage), rather than a closed trial at the Police Court. Mrs Pankhurst was arrested on her approach to Parliament and tried in the Police Court. Sadly, no reference was ever made to the 1661 Act.

Secondly, much of the early suffragette work revolved around campaigning in areas where Parliamentary by-elections were taking place in an attempt to de-seat current Liberal Parliamentary members and upset the status quo. In 1908, a 34 year old Winston Churchill was promoted to the Government Cabinet by becoming the President of the Board of Trade. Any new Cabinet member had to go through a process of re-election to their constituency. Christabel Pankhurst and other suffragettes campaigned in Mr Churchill’s previously safe constituency of North West Manchester. Mr Churchill, to his shock, lost his seat to the Conservative William Joynson-Hicks by 429 votes. The day after the election, the Daily Telegraph carried the front page headline: “Winston Churchill is OUT! OUT! OUT!”.

Mr Churchill then sought election in the constituency of Dundee which was a Liberal Parliamentary stronghold seat that he would win without doubt. In any event, Emmeline Pankhurst sought to campaign against him and part of Mr Churchill’s response was to hold a women only event assuring the women of Dundee that he would seek women’s suffrage in the next Parliament. Mr Churchill won the seat. This must have proved an interesting early political tumult for a man who would go on to serve two terms as Prime Minister, one of those terms during the course of World War II.

Young Winston Churchill

Further campaigning and political pressure led to the introduction of the Representation of the People Act 1918 which granted the right to vote to all men, free from property value restrictions. The 1918 Act also granted voting rights to women over 30 years of age, albeit with the requirement of being a property owner. The Representation of the People Act 1928 (a mere 89 years ago) followed which granted voting rights to all men and women aged 21 and over (the then age of majority, rather than 18 as it is today), with no property ownership or value restrictions.

Interestingly, a 1948 Act of the same name abolished the English University constituencies. These were constituencies surrounding certain historic Universities (e.g. Oxford and Cambridge) and graduates of those Universities were allowed to vote both in the constituency where they resided and also in their University constituency, thereby voting twice in the same election. The 1948 Act put an end to this last vestige of multiple voting. Finally, the Representation of the People Act 1969 extended the right to vote to those aged 18 to 20 years old.

As an attempt at further Parliamentary Election reform, the Labour minority Government of 1931 introduced a Representation of the People Bill which included a provision to switch from the First Past The Post voting system (the still current UK model) to a form of Alternative Vote. The Bill was successful at the voting stages in both the House of Commons and the House of Lords but the Labour Government was defeated in the 1931 General Election before the Bill could become law. A national referendum in 2011 asked the UK public whether or not they wanted to switch to the Alternative Vote system. The switch was rejected with 67.9% of the public answering ‘No’. In 2016, Green Party MP Caroline Lucas introduced into the House of Commons the Electoral Reform Bill with a provision to change voting in Parliamentary elections to a form of Proportional Representation which would assist the smaller political parties in achieving representation in Parliament. The Bill was rejected.

In the UK’s 2015 General Election, only 43% of those aged 18-24 years old voted in comparison to over 80% of those aged 65 and over. The very youngest adults of the UK have only had the right to vote for 48 years. It has certainly been a long and long fought over road across nearly 800 years of English Legal History to achieve the Parliamentary election and voting system the UK has today. Perhaps the voting turnout from the youngest in our society in the UK’s 2017 General Election on 8 June 2017 will make its own mark in English Legal History.

BOOK RECOMMENDATION: The Lawyers Who Made America

The Lawyers Who Made America

From Jamestown to the White House

Anthony Arlidge QC

No other nation’s creation, both politically and socially, owes such a debt to lawyers as the United States of America.  This book traces the story of that creation through the human lives of those who played important parts in it: amongst others, of English lawyers who established the form of the original colonies; of the Founding Fathers, who declared independence and created a Constitution; of Abraham Lincoln, Woodrow Wilson, Justices of the Supreme Court and finally Barack Obama.  Even Richard Nixon features, if only as a reminder that even the President is subject to the law.  The author combines his wide legal experience and engaging writing style to produce a book that will enthral lawyers and laymen alike, giving perhaps a timely reminder of the importance of the rule of law to American democracy.

Anthony Arlidge has been a Queen’s Counsel for over thirty five years, appearing in many high profile cases.  He has submitted written amicus briefs to the Supreme Court of the United States and the Santa Monica Court of Appeals.

April 2017   |    9781509906369   |   232pp   |   Hardback   |    RSP: £25

Discount Price: £20

Click here to order online and use the discount code CV7 at the checkout to get your 20% off

1867: When democracy came to the Isle of Man?

Peter Edge*

The Isle of Man holds a unique place in English Legal History. From 1266 to the late 14^th Century, the Island was alternatively ruled and vied for by Scotland and England. Eventually, the Island came under the rule of the English Crown, but never became part of the United Kingdom, and retained its own legal system, albeit strongly influenced, and at times determined, by English law. The Island today therefore is a self-governing Crown dependency.

The UK Government is responsible for the management of the Island’s defence and external relations generally. The UK Parliament maintains the power to legislate for the Island, although it is disputed whether Acts of Parliament are superior to Acts of Tynwald, the Manx legislature.

Manx Legal History and its inter-relationship with English Legal History is fascinating and is worthy of close study.

One hundred and fifty years ago, the Isle of Man carried out its first elections to the national legislature, the Tynwald. From the early 17^th century the House of Keys, the lower chamber, had been elected by a partnership of the Lieutenant-Governor of the Island and the Keys themselves. The Keys would nominate two candidates to a vacancy, of whom the Lieutenant-Governor would elect one, almost invariably the first. Unsurprisingly, as Moore put it, the Keys became “a closed corporation … largely confined to a few leading families”.

The upper chamber of the Tynwald, the Council, consisted of the principal Crown officers of the Island. This matched a model to be found across the British Empire. A lower chamber elected by itself, however, was not to be found elsewhere. In 1837 Robert Peel described it as “[s]o anomalous a body as could not exist within the British Empire”. Certainly it contrasted sharply with contemporary elected assemblies in the Province of Canada (1841), and New Zealand (1853).

The catalyst for attention being directed at this anomaly was not a strict concern with Imperial consistency. Rather, during the nineteenth century there was an increased concern that Manx revenues were not being spent on projects to advance Manx interests, and consequent Manx pressure for reform. The old Manx constitution posed two significant obstacles to the granting of greater authority to Tynwald – the legislation which led to the 1867 elections dealt with these obstacles in order to allow the creation of distinctively Manx public finances controlled by Isle of Man based officials.

Firstly, enhancing the practical powers of the House of Keys while leaving them in the grip of a particular class of society was not acceptable to the Imperial government. This was particularly the case as the Isle of Man was already developing elected government at local level. An 1866 Act provided for popular elections to the House of Keys to be held in 1867, with the first elections taking place across 2-5 April.

Secondly, the Keys had an ancient, and distinctive, role as the ultimate jury of the Island. From 1601 the Keys sat in the Manx criminal court which dealt with felonies, responsible for punishing juries who gave a false and partial verdict. By 1823 they were seen as overreaching themselves, and delaying the court. In 1824, under orders from London, the Lieutenant-Governor manufactured a test case which, on reaching the Privy Council in 1824, confirmed that the Keys had no place in the criminal court. Even after their removal from this Court, however, the Keys continued to exercise their customary role as a jury of appeal in other cases, particularly serious civil cases. Numerous examples can be found of the Keys reversing the verdict of a lower jury, for instance in 1830 reversing the dismissal of an assault suit and awarding £100 damages plus costs to the plaintiff.

The Keys as a body could thus be responsible both for passing a law, and acting as appeal jury in a case turning on that law. Concerns were exacerbated by the role of individual Members of the Keys as important parts of the Manx establishment, particularly the legal establishment. G.W. Dumbell, for instance, had represented the plaintiff in a libel case against the Manx Sun. On appeal to the Keys, Mr Dumbell was part of the body which decided to increase the damages awarded to that plaintiff, his client, from 40 shillings to £100. The role of the Keys in jury trials was put forward at one point by the Keys as a reason why they should not be subject to election. Instead, the 1866 legislation removed them from the appeals process, and 1867 legislation introduced a new appeals procedure.

1867 is justly celebrated in the Isle of Man. It was an incomplete democratisation, but provided an essential foundation for extensive reforms in the century that followed.

Firstly, initially the electorate was very narrow, with an open ballot, and a franchise limited to adult males able to meet a high property qualification. Kermode has suggested that around 20% of the adult population were eligible to vote, with even fewer eligible to stand for election. The first elections led, in the words of Brown’s Directory, to “a thoroughly conservative house, 13 of the 24 members elected having sat in the old self-elected House, and a majority of the 11 new men being pledged to conservative views”. These issues were addressed by fifty years of electoral reform.

Most importantly, and not sufficiently well-recognised globally, in 1881 the Isle of Man became the first territory in the British Empire to include women in the electorate to the national legislature. The first vote by a woman was cast by either Eliza Jane Goldsmith of Ramsey, Catherine Callow of Ballakilley, or Esther Kee of Leodest. Although not initially an equal franchise, the comparative narrowness of the period 1866-1881 when men, but not women, had the vote, is something for the Isle of Man to celebrate.

Secondly, although the Isle of Man gained increased fiscal autonomy, and a role for Tynwald in how it was exercised, the Manx constitution remained dominated by the Lieutenant-Governor, an appointee of the Crown. Ideas of responsible government, where executive authority was increasingly exercised by officers responsible to a locally elected assembly, were gaining ground, and being adopted in British North America (1848), and by New Zealand and most of Australia by 1859.

Responsible government was categorically, and deliberately, not intended to follow from elections. It was not until well into the twentieth century that responsible government came to the Isle of Man. The increased legitimacy the Keys gained from a democratic mandate had a significant role in this. As Lieutenant-Governor Hope foresaw in 1853, an elected Keys “would claim far greater and more arbitrary power … at issue with the British Government, [than] any Council consisting of Members nominated by the Crown”.

*Peter Edge is Professor of Law at Oxford Brookes University. His primary historical interest is the public law of the Isle of Man. His open access ebook Manx Public Law (1997) is available at tinyurl.com/kpz4rzv