The reform of English divorce law: 1857–1937

Abstract

The introduction of the Matrimonial Causes Act 1857 was a watershed moment. It allowed a secular court to grant divorce on the ground of adultery. The thesis argues that the Act and its later operation has been misunderstood by social historians and feminist scholars. The existing literature suggests that many of the provisions merely codified the existing laws. This view ignores the wider legal and cultural shifts which surround the legislation. Only through understanding the legal doctrine is it possible to fully assess the changes brought about by the Act. Key changes include the end of any pretence that marriage was indissoluble, the perpetuation of a double standard between genders in the grounds for divorce, and the way in which divorce became increasingly accessible beyond the wealthy. Although this was not the intention of the legislators at the time, the Act ultimately led to the establishment of the modern family justice system. The old tripartite divorce system involving the Assizes, the Ecclesiastical Court and the House of Lords was swept aside. Divorce reform can only be properly understood as part of a wider push for judicial reform and the defenestration of the Ecclesiastical Court. The Court for Divorce and Matrimonial Causes, and later the Probate, Divorce and Admiralty Division of the High Court of Justice replaced the old structures. The thesis also argues that the Act was a product of political and legal compromise between conservative forces resisting the legal introduction of civil divorce and the reformers who demanded married women receive equal access to the grounds of divorce. The Act did not mark the end of judicial reform. Although judges were statutorily bound to interpret the grounds for and bars to divorce under the Act rather conservatively, there were also some attempts by the judiciary to push a reform agenda. The 1857 Act was not the end of legislative reform either. Expansion of married women’s property rights in 1882 and the abolition of the double standard in 1923 were important legal landmarks which helped to galvanise the campaign for divorce law reform. Changing attitudes towards divorce in the Interwar period led to a gradual rejection of Victorian moral values and the repeal of the Act after eighty years.