The History of Divorce Law Discussed by Hurlows Family Law Practice


History of Divorce Law


Across news-feeds or articles online and in the newspaper, there are constant updates on celebrity information but especially surrounding separations and divorce. When considering how popular the discussion is around celebrity divorce, it may be a surprise that divorce was a highly unpopular and controversial subject throughout history.


In this article, we take a look at the history of divorce from early examples of divorce to the series of events and legislations that have formed the divorce process and its current processes. If you require more information on the divorce process then enquire with Hurlows Family Law Practice using an online contact form on our website or telephone now on: 029 2039 6087


Divorce in Early History


Divorce in Ancient Times


In Ancient Times, there were differing attitudes to divorce as well as who could initiate a divorce. The Ancient Egyptians perhaps had the most equal marriages with divorce being arguably the most similar to the modern divorce process. Divorce was legal in select circumstances such as if couples presented evidence of illness, hatred or betrayal.


In Ancient Greece, marriages were often arranged by the parents of the couple and each city had their own laws affecting marriage. For the marriage to be confirmed legal, the father or guardian of the woman would have to give permission to the suitable male who could afford to marry. In Athens, both husband and wife could initiate the divorce process. The husband had to send his wife back to her father to end the marriage however for the wife to obtain a divorce she had to appear before the archon (a chief magistrate of Athens.) The other two situations in which a divorce could be permitted could be initiated by the father of the bride (if a child was not borne during the marriage) and if an epikleros (female heir to a father with no male children) was requested to be married to the closest male relative on her fathers’ side.


Ancient Romans only allowed divorce if this was initiated by the husband. Early Roman Law only required an agreement to live together but the husband was the one who held broad powers. Divorce was however rare. Emperor Augustus however made adultery as a crime in 18 B.C with his Julian Marriage laws which paved the way for adultery to be cited as a reason to cite for divorce across the world today. It was made punishable by exile, confiscation of property or even murder in extreme cases.


Divorce in the Early Modern Era


Divorce in Roman Catholic Church


It’s arguably the application of Christian scripture which led to marriages being seen as ‘unbreakable’ in the early modern era. The Roman Catholic Church does not recognise divorce and instead dictates that a marriage can only end when one partner dies or if there are grounds for an annulment. This offers a divorce in the ‘eyes of the state’ but not in the ‘eyes of God.’ Focus our attention on Henry VIII who wished to divorce Catherine of Aragon to marry Anne Boleyn. A famous story in British History but Henry VIII pursued a papal dispensation to be allowed to divorce Catherine of Aragon. Upon not being bestowed this he effectively began The Reformation, establishing his own Church of England and rejecting Catholicism. This arguably paved the way to the divorce process that is used in the modern day. It was a key driver of divorce reform in the 16th and 17th Century of England and Wales.


Divorce With Permission of Parliament


Over the course of the 16th & 17th Centuries, several Acts of Parliament were passed which permitted the divorce of wealthy gentry to their wives on the grounds of adultery. Private members’ bills in Parliament became a common way to achieve divorces on this ground. This was a very expensive process but became open to those who were less wealthy when it became common to bring your case for divorce to the Ecclesiastical Courts. This would then lead to a petition to be presented to the House of Lords to pass the relevant Act of Parliament. This solidified adultery as one of the grounds for divorce.


The Society for Promoting the Amendment of Law in the 1850s suggested and requested proposals to make divorce more accessible by making it a cheaper process. However, before the Divorce Act of 1857 was passed, a highly famous and influential Victorian campaigner for women’s rights was the key to pushing forward this and another important aspect of the divorce process.


Caroline Norton – The Battle for Women’s Rights in Divorce


Womens Rights - Divorce & The Vote


Caroline Norton was required to marry Tory MP George Norton who was negligent towards her however she found financial independence from the publication of various verses of writing. She eventually left George in 1836 but although agreeing for the separation to be amicable, attempted to claim that Caroline was guilty of adultery with Lord Melbourne the Home Secretary and consequently sued Lord Melbourne. He lost the case but Caroline’s reputation was ruined. Due to the fact that he constantly refused access to their three children, her active protests were key in the passing of the Infant Custody Bill in 1839. This allowed a woman who was divorcing from her husband to petition for custody of her children up to the age of seven and this was the starting point in child custody reform.


After a moving and eloquent letter to Queen Victoria, her efforts were influential in the passing of The Matrimonial Causes Act 1857. This moved litigation from the ecclesiastical courts to the civil course which widened the availability of divorce to the wider public. This also allowed the rights for common law barristers and civil law advocates to represent their clients however the bill was still much more beneficial to men in a divorce than to a woman.  These rights would be a pre-curser to further rights and the woman’s suffrage movement just a few decades later.


The Transition into Divorce in the Present Day


A Royal Commission in 1912 suggested the wish to introduce cruelty or 3 years’ desertion as as seperate grounds for divorce but this was met by heavy resistance to the church (as this was seen by them to widen the possibility of divorce) and was subsequently defeated in 1914. A second Commission in 1923 attempted the same reforms but succeeded in equalising the rights between wives and husbands without introducing cruelty and 3 years’ desertion as seperate grounds for divorce.


Married couples were often ‘staging’ an act of adultery by the husband to achieve a divorce ‘by consent’ and therefore use issues within the system to achieve a divorce. In 1935 a committee within the Church finally agreed to the original proposals and cruelty or 3 years’ desertion were permitted as seperate ground for divorce. After a Royal Commission suggesting that divorce should be permitted with irretrievable breakdown of the marriage being cited as a ground for divorce was presented in 1955, the Archbishop of Canterbury endorsed this and it was brought into law by the Divorce Reform Act of 1969. The introduction of the Matrimonial Causes Act of 1973 is the divorce process that we see today.


The Future of Divorce Law


Modern Divorce


Since 2004, same-sex couples have been permitted to be able to enter into civil partnerships with same-sex marriage being made lawful in 2014. There are still discrepancies in the equality of this type of marriage as adultery is only able to be used as grounds for a divorce for a same-sex marriage couple for example.


In recent news, there have been several high-profile court cases prompting critics to call for divorce reform (citing that some laws are almost 50 years’ old.) The case of Tini Owens in July 2018 brought widespread media attention to the subject of divorce reform as after a ruling from the Supreme Court, she has been told she must remain married to her husband until 2020. This is reflected in some wishing for ‘no-fault’ divorces to be introduced. No-fault divorce was first introduced by the Family Law Act in 1996 but it was repealed at a later date.

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