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Divorce and women’s rights: a history

John Oxley
Divorce and women’s rights: a history

Divorce laws have been intimately bound with the rights of women, and their evolution mirrors the changing role of women in society. Whilst law reform has often been reactive – lurching from injustice to injustice – it can also be transformational. Divorce laws have changed from women effectively being a chattel of their husband to being an autonomous part of a marital partnership, afforded great protection by law.

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The early history of divorce

The ancients were relatively liberal in their approach to divorce. The Roman state had little involvement in such matters and separations were resolved in private by extended families. From the second century before Christ, women were free to invoke divorces and could renounce the marriage at will. Financially, a divorced woman would be provided for by keeping the dowry paid upon marriage regardless of who invoked the divorce.

Such liberal attitudes did not survive the advent of Christianity, which placed the indissolubility of marriage at the core of its beliefs. Divorce was limited to occasions of grave offence by around the third century and generally prohibited in Western Europe by the end of the early mediæval period. Civil courts lost their power to adjudicate matrimonial cases and canon law was paramount. The Roman Catholic Church also maintained that, upon marriage, husband and wife became one person in law, with the wifes legal existence being suspended for its duration.

Anglo-Saxon England remained relatively liberal compared with the Continent at this stage. Divorce was permitted, usually on the grounds of adultery, and women were allowed to initiate it. Where the husband was at fault, the wife was permitted to leave him and, if she was the carer for children, have use of half of the matrimonial property. Women were also allowed to own property in their own right, and brought to the marriage a morning gift (morgengifu) – a parcel of property to which remained her absolute property in case she was deserted by her husband.

Such liberalism perished with the Norman Conquest, as England fell in line with the rest of Catholic Europe. The prohibition on divorce meant that the only option for married couples was to seek an annulment from religious courts (which rested on the original validity of the marriage) or a legal separation (divorce a mensa et thoro). Under a separation, the husband and wife would cease cohabitation but remain legally joined. Financial and social pressures made such situations rare.

The Reformation

It was, famously, Henry VIII who first revolutionised marital law in England and Wales. In seeking an annulment of his marriage to Catherine of Aragon, he ultimately transferred the jurisdiction from the Roman Catholic Church to the English authorities. Divorce, however, remained contrary to sacrament and was rarely allowed.

During the English Civil War, the Puritans began to challenge this belief – passing a law which stripped marriage of all sacramental significance. This left it as a secular contract which could be broken. Milton wrote four tracts that argued that spousal incompatibility could be a reason for divorce, but faced a backlash from religious authorities. In 1670, the secular authorities permitted divorce for the first time, when Parliament passed an Act dissolving the marriage of John Manners, 1st Duke of Rutland, and Lady Anne Pierrepoint.

For the next two centuries, a private act of Parliament remained the only way to secure a divorce. This was prohibitively expensive and limited to only the wealthiest of couples.

Victorian reforms

Across Europe, the Enlightenment led to a gradual relaxation of divorce laws. It was a society scandal, however, that forced reform in England.

In 1827, Caroline Norton, a society beauty, author, and social reformer, married barrister George Chapple Norton MP. Nine years later she left him, attempting to subsist on the income generated from her writing. Taking advantage of the law at the time, which made a womans earnings the property of her husband, George confiscated her income. She responded by running up bills and sending the creditors to her husband, stating that wives had no legal personality separate from their husbands.

Escalating the conflict, Mr Norton abducted their children, hiding them with relatives in the north. He then initiated a legal case, accusing his wife of having an affair with then Prime Minister Lord Melbourne (whose own wife had a famous dalliance with Lord Byron). The case became the talk of London society and almost brought down the government, but after a nine day trial it was thrown out by the jury.

Despite being cleared of impropriety, Caroline remained hostage to the misogyny of the Victorian legal system. Unable to obtain a divorce, her husband continued to deny her financial support and access to their children.

As a result, she turned to legal campaigning, and her case became a cause célèbre. Three acts of Parliament emerged from the affair – the Custody of Infants Act, The Matrimonial Causes Act 1857 and the Married Womens Property Act 1870.

The Custody of Infants Act removed the assumption that a child would remain with the father. It allowed a woman to petition for custody of her children up to the age of 7 and for access in respect of older children.

The Matrimonial Causes Act of 1857 put divorce into the civil courts for the first time, widening the availability for a divorce to the middle-classes. The act, however, remained deliberately gender discriminatory. A husband could seek a divorce on the grounds that his wife had committed adultery, whereas for a wife to petition it had to be paired with incest, bigamy, desertion or another offence. Additionally, a husband was required to name the person with whom his wife had committed adultery, whilst a wife did not.

Within 12 months of the act, the divorce rate rose from 3 per year to over 300. Perhaps surprisingly, petitions made by women had a greater rate of success than those by men. Financial provision, however, was far less favourable. The vast majority of wives were awarded no property or further financial support – a factor which led to many wives abandoning their applications after issuing petitions.

Such disadvantage was somewhat alleviated by the Married Womens Property Act 1870, which abolished the bar on married women owning and earning. Women were allowed to hold their own property and could deploy their income for their own separate use, independently from her husband. Married women were also allowed to inherit property in their own names. This was combined with a statement of the law which made the financial maintenance of any children the duty of both parents.

The act, however, was not wholly effective. Women could not maintain independent control of money which they brought into the marriage. It equally had no retroactive effect and did not apply to any assets held in trusts.

It was amended in 1882, allowing women greater rights to dispose of their own property. The 1882 act also, for the first time, established the separate legal personhood of women – meaning they could sue and be sued in their own name.

In vesting women with full property rights, these two acts established women as wholly separate legal entities. This laid the foundation for women to be seen as equal individuals in the eyes of the law, invalidating many of the arguments against womens suffrage (suffrage at the time was limited to the propertied).

The twentieth century

Following the establishment of womens suffrage and the social changes which occurred in the inter-war years, pressure grew for a more equal approach to divorce. This came in 1937, with the Matrimonial Causes Act of that year.

This act, following almost three decades of political pressure, allowed women to petition for divorce on the same terms of men for the first time. The law, however, retained the requirement for adultery, cruelty or desertion to be demonstrated. The courts also made minimal financial provision, up to around 1/3 of the assets, and this was often dependent upon who was at fault for the breakdown of the marriage. Indeed, in one case maintenance payments to an adulterous wife were justified only because the judge feared that in the absence of financial support she would become a prostitute.

Such limitations would be addressed in the landmark legislation which still governs divorce today – the Matrimonial Causes Act 1973.

The 1973 Act began to change this. The reasons for divorce were expanded to include behaviour which makes it unreasonable to expect the petitioner to live with the respondent – allowing people to divorce without having to prove an objective failing. It also widened the ambit of financial provision, ensuring that, regardless of the reasons for the breakdown of the marriage, both parties would have their financial needs met.

The application of this act remained relatively old-fashioned. Famously, Lord Denning in the case of Wachtel v Wachtel (one of the first on the implementation of the act) saw the courts duties as follows:

In any case, when there are two households, the greater expense will, in most cases, fall on the husband than the wife. As a start has to be made somewhere, it seems to us that in the past it was quite fair to start with one third. Mr. Gray criticised the application of the so-called "one-third rule" on the ground that it no longer is applicable to present-day conditions, notwithstanding what was said in Ackermann v. Ackermann. But this so-called rule is not a rule and must never be so regarded. In any calculation the Court has to have a starting point. If it is not to be one third, should it be one half? or the quarter? A starting point at one third of the combined resources of the parties is as good and rational a starting point as any other, remembering that the essence of the legislation is to secure flexibility to meet the justice of particular cases, and not rigidity, forcing particular cases to be fitted into some so-called principle within which they do not easily lie. There may be cases where more than one third is right. There are likely to be many others where less than one third is the only practicable solution. But one third as a flexible starting point is in general more likely to lead to the correct final result than a starting point of equality, or a quarter.

Lord Dennings last sentence would remain influential until the early 21st century.

In the remainder of the 20th century, reform was slow and reactive. The Matrimonial and Family Proceedings Act 1984 allowed partners to claim in the British courts if their spouse divorced them in an overseas divorce which left them inadequately provided for.

The Children Act 1989 removed presumptions about with whom children should stay after divorce. Instead, the needs and welfare of the child was put at the heart of the system, allowing fathers and mothers more flexibility in family arrangements. The act also allowed for greater financial provision for unmarried mothers. Finally, the Family Law Act 1996 made it easier for abused partners to seek protective injunctions from the court.

The era of big money divorces

In 2001, Lord Dennings approach was thoroughly rejected. The House of Lords in White v White restated the law, fundamentally shifting the interpretation of the 1973 act. The court held that marriage was a partnership and that division of the assets should be measured against the yardstick of equality of division. This approach was adopted "to ensure the absence of discrimination" between the member of the family who earned the money and the person who brought up the family.

Following White, a number of cases clarified how this new approach was to be applied. The court would ensure that the financially weaker partys needs would be met – going beyond mere subsistence to generously interpreted with reference to the living standard of the marriage. Where the assets were more than sufficient to meet both parties needs, the starting point will be one of equal sharing, regardless of who earned the money – unless there is good reason to depart from that approach.

The cases of the early 2000s established Londons place as the divorce capital of the world. As the courts in this country refused to discriminate between the homemaker and the bread-winner, the equality of different roles with in the family would mean an equal entitlement to share in marital assets. This switched the view of the divorced wife from someone who had to be maintained to stop her falling into penury to someone who had a full entitlement to share in the marital acquest. This entitlement granted women greater chance to leave relationships and stopped them from being trapped in loveless marriages.

The changes since White have moved England into the most progressive jurisdiction in the world for divorce law. Women are not penalised for leaving the workforce and are instead seen as autonomous contributors to the marriage.

Prenuptial agreements

In 2010, the case of Radmacher v Granatino provided a further boost to the autonomy and independence of women in the eyes of family law, by allowing prenuptial agreements to carry weight in English divorces. Prior to this case, English law saw prenups as anathema.

The historic view was that a woman would be so awed by the prospect of marriage that she would agree to any suggested agreement. This approach effectively stripped women of their bargaining powers and autonomy. In embracing prenuptial agreements as having magnetic importance the Supreme Court banished this orthodoxy.

In doing so, the law evolved to fully accept the autonomy of wives (and husbands) who can choose to embrace or alter the statutory divorce regime according to their circumstances.

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