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.