Chapter One: The Frivolity of Divorce
First, marriages do not simply ‘break down’ by themselves. Legally, someone – and it is usually one – consciously ends it by filing official documents and calling in the government against his or her spouse… some 80 percent of divorces are unilateral.
Stephen Baskerville (Baskerville, 2002)
For the Romans marriage (matrimonium) was a social and legal alliance without any necessarily religious dimension: a means of securing the protection of property and of producing legitimate children, i.e. children born with a right under the law to inherit from their fathers. It was a legal contract strictly controlled. Adultery by a wife was a criminal offence, tried by dedicated courts; because marriage was a social arrangement the wife would lose property and potentially her status as a citizen: adultery was a crime against the state: an offence against the social order; no violation could be tolerated. Under the lex Iulia de adulteriis a husband aware of his wife’s adultery was obliged to divorce and prosecute her within 60 days, otherwise he was guilty of acting as her pimp and could himself be prosecuted. The lover could be deprived of his property or his citizenship or, if he was of lowly status, he could be sentenced to hard labour. He could even be killed, though the husband had no legal right to kill his wife.
The idea of marriage as a sacrament, extolled by St Paul, was not introduced until the Middle Ages as a means by which the Church could regulate marriage; non-religious, civil marriages were not enabled again until the Marriage Act 1836. Marriage was believed to be ordained by God and a reflection of the marriage between Christ and his Church – ‘the voluntary union for life of one man and one woman to the exclusion of all others’ (1st Baron Penzance, 1866) – but the civil function was retained: to bond fathers – the weakest link within the family – to their wives and children, for without marriage there can be no fatherhood. Family breakdown causes fatherlessness, not motherlessness; divorce is an institution for eliminating fathers. Marriage also provides a sanctuary in which parents may raise their children free of state control; in communities in which there is no longer any marriage the state has moved in to replace fathers with taxpayer-subsidised welfare and child-support enforcement.
What we have lost sight of is the concept of marriage as a legally and financially binding contract and the function of marriage to ensure that children have fathers, and it is in this context that we shall use the word adultery: to represent the breach of the marriage contract through voluntary sexual intercourse with another and a ground for divorce. To other ages it had other meanings; a late seventeenth century gentleman described how he had accidentally had sexual intercourse with his wife in a darkened room thinking her to be a housemaid – had he committed adultery with his own wife? And if so, he agonised, was the consequent child thereby a bastard?
Divorce has always existed in human societies alongside marriage, though Voltaire once remarked, ‘I think, though, that marriage is a few weeks older’. Within Christendom marriage was considered indissoluble, and prior to the Reformation a divorce could only be obtained through the Pope; it was hugely costly and thus very rare. The ecclesiastical courts granted divorces a mensa et thoro (from table and bed) on the grounds of adultery, cruelty or unnatural offences. Desertion was remedied not by divorce but by a decree of restitution of conjugal rights; disobedience to such decrees resulted in excommunication. Only in 1813 was excommunication substituted by six months imprisonment.
It was much easier to end a marriage through annulment – the declaration the marriage had never been valid; the ecclesiastical courts could grant nullity decrees on the grounds of consanguinity or affinity, mental incapacity, impotence, ‘force error impuberty’ (being under age) or a prior existing marriage; but the aggrieved party had still to remain celibate until the death of the guilty spouse. A suit of ‘jactitation’ (boasting) of marriage could be taken out against a person who had falsely asserted or bragged that he or she was married to another; the sentence was an order to keep perpetual silence, this relief wasn’t finally abolished until 1986. Conveniently, if unexpectedly, annulment preserved a child’s legitimacy.
In 1602 Richard Bancroft, Archbishop of Canterbury and chief overseer of the King James Bible, stated that marriage was indissoluble and the ecclesiastical courts would no longer dissolve a marriage absolutely; from then on any who wanted a divorce had to petition Parliament through a Private Members Bill. In this way divorce became secularised, and the religious injunction against divorce diminished in significance. Divorce remained prohibitively expensive to all but the most wealthy, costing about £100,000 at today’s prices. It was an option normally available only to husbands who had first to bring an action for ‘criminal conversation’ (‘crim. con.’ as it came to be known) against the other man; if successful significant damages could be awarded and the wife – who could not defend herself – would be labelled an adulteress.
Between 1670 – the year John Manners, Lord Roos, divorced Lady Anne Pierpont in the first parliamentary divorce – and 1857 there were only 325 divorces in Britain, of which a mere five were granted to wives. A wife normally had to make do with a divorce a mensa et thoro which was similar to a modern judicial separation – she could live apart from her husband but the marriage was not fully dissolved and she was prohibited from remarrying. This rendered her almost an outlaw, without home, livelihood or civil rights.
In the nineteenth century divorce was a rarely used legal remedy available to an injured and legally innocent party; divorce law was designed to protect the institution of the family by rigorously enforcing the concept of ‘fault’ and by keeping adultery in check. The party who petitioned for divorce was held to be ‘unimpeachable’ and to hold the moral high ground. Divorce was considered a grave social transgression: it undermined the family and threatened the very foundations of society and civilisation.
In 1857 the Matrimonial Causes Act introduced for the first time a Court for Divorce and Matrimonial Causes which made divorce through the courts available to everyone – provided they could travel to London; but while a man could divorce his wife for adultery, a wife had to prove aggravating circumstances such as incest. The 1857 Act controlled divorce strictly, and a man would be refused a divorce if there were the merest hint of ‘connivance’ – that he had ‘winked’ at his wife’s adultery, ‘condonation’ – that he forgave the adultery, or ‘collusion’ – that he was presenting a false claim of adultery in order to obtain a divorce desired by both parties. This last ensured that there was no possibility under English law of obtaining divorce by consent. Lord Denning explained in 1947,
Marriage is not a contract which the parties can mutually agree to rescind. It confers a status in which others beside the parties are interested… Society itself, for the sake of the children, cannot allow the unity of family life to be broken by the consent of the parties. Hence in this country the fundamental rule that divorce by mutual consent is not allowed (Denning, 1947).
A petitioner for divorce had to be free of any blame himself; if he had committed adultery as well as his wife, he would be refused, because if both parties were adulterers, neither could reasonably claim the other had broken the contract. The Act also gave the court powers to determine the custody, maintenance and education of the divorcing couple’s children. To allow time for any witness to present evidence of connivance, condonation or collusion an amendment was added in 1861 which restructured divorce as a two-stage process. After the first stage – the decree nisi – a period of six months would be required (reduced to six weeks and a day in 1996) in which evidence could be presented to the Queen’s Proctor which would disqualify the petitioner from proceeding to the second stage – the decree absolute (in practice divorce progresses in three stages because the application for the nisi can only be made once the court accepts the petition). Within three years of the 1857 Act the divorce rate had increased to 200 a year, and by 1900 to nearly 500. Concerned voices came to be raised that the new laws were undermining the sanctity of marriage. Nevertheless, the Act still demanded that three judges scrutinise the facts of every case, a requirement abolished in 1860.
In 1873 the divorce and probate courts were consolidated into one division, together with the High Court of Admiralty, a curious union which made the finding of lawyers and judges competent in all areas a considerable difficulty. As divorces proliferated the costs of travelling to London became an increasing problem for ordinary people (and the witnesses whose costs they had to bear); the county courts had been established in 1844 to adjudicate civil disputes, but handing matrimonial matters to them was unacceptable to the Government and so it fell to the magistrates’ (or ‘police’) courts to deal with matrimonial issues in a series of acts over the last quarter of the nineteenth century. These courts could confer the equivalent of a judicial separation but not the right to remarry; thus two distinct systems of family justice operated concurrently.
The Matrimonial Causes Act 1923 enabled wives to divorce their husbands on the grounds of adultery, rape, sodomy or bestiality. It allegedly led to an increase in collusive divorces. The 1937 Matrimonial Causes Act added cruelty, desertion and incurable insanity. Proposals to allow the terrible sin of divorce by consent – and thus to remove the notion of ‘fault’ – were rejected vehemently on the grounds that it would further undermine the status of marriage and the family. The introduction of the broadly interpreted accusation of ‘cruelty’, however, led to an alarming rise in the number of divorces; in 1938 there were 6,250 divorces involving children.
The focus of divorce law remained reconciliation; reformer Claud Mullins, a Metropolitan Police Magistrate, considered this to be obstructed by sensationalist newspaper reporting and the insistence of the courts on interpreting matrimonial disputes solely as matters of law. Advised by Mullins, 27-year-old Lord Listowel introduced a Bill into the House of Lords aimed at changing the function of the divorce court from one of litigation to one of investigation (or inquisition) and reconciliation. Under the terms of his 1934 Bill the court would have gone beyond its remit of administering the rule of law and would have taken on a role of advisor and therapist.
The Bill was widely condemned: Lord Merrivale, former President of the Probate, Divorce and Admiralty Division, called it a ‘burlesque’ which subverted ‘the established principles and methods of the administration of justice’ (Hansard, 1934). The Lord Chancellor, Viscount Sankey, said it would,
confer upon a court of law functions of a non-judicial, advisory and patriarchal character which are difficult to reconcile with the purposes for which a court exists. That in matrimonial disputes such functions can often be usefully exercised by some unofficial person or body of persons is admitted, but they are not functions of a court of law (Ibid.).
This distinction is of vital significance: the Family Court as it developed was not a court of law but one of ‘equity’ or of ‘chancery’; that is, a court in which decisions were made not according to the strict principles of the common law but according to vague ethical statements and the judges’ discretion. In the nineteenth century suits of equity were heard in the Court of Chancery, parodied by Charles Dickens in Bleak House, in which he described the long-running case of Jarndyce and Jarndyce, concerning a once great inheritance entirely devoured by legal costs (Dickens, 1852-53). The ability of the family courts to spin out cases for many years without resolution and to consume fortunes is inherited from the Court of Chancery.
The advocacy of an advisory and therapeutic role reveals a problem which haunts us today: that disputes between intimate partners are rarely of the kind that can be resolved through the application of legal principles and are more appropriately resolved through other means. This absence of clear underpinning principle creates a dangerous vulnerability to ideology and junk science. Once divorce – and its progeny of custody and access disputes – had stumbled into the courts, however inappropriate an arena they represented, the judiciary didn’t want to let go.
Notwithstanding Sankey’s denigration, the Listowel Bill became the Summary Procedure (Domestic Proceedings) Act 1937. The Act provided that domestic hearings be separate from other hearings, that they be heard by a tribunal of three magistrates to include both a man and a woman, and that unrepresented parties be able to present their case in their own words. It excluded those without a legitimate interest from the court and imposed reporting restrictions, thus establishing for the first time the closed and secret aspect of the Family Court. A further significant provision of the Act for the purposes of our story was that it gave statutory recognition to the conciliatory and investigatory (or inquisitorial) role of probation officers – but not judges – to provide a ‘statement of allegations’ and thus laid the foundations of what would become the Children and Family Court Advisory and Support Service (CAFCASS). The purpose of this service was not to provide advice or support in order to resolve disputes but to compile a report which could then be presented to the court for judicial resolution, a function it retains. The Family Court with which we are familiar was taking shape.
In the UK, in common with other European and English-speaking countries, adultery was not a crime, although until 1947 a man who divorced his wife for adultery could reasonably expect to retain custody of his children. As we shall explore in the next chapter, the expectation with which a litigant goes to court is an important determinant in the decision to commence proceedings. Two principles governed this expectation. The first was that of ‘the best interests of the child’, introduced into English law by the Guardianship of Infants Act 1925. The second was that the father was ‘the natural guardian of his legitimate child’. Mothers had always been the sole legal guardians of illegitimate children, that is, those children who may not legally inherit from their fathers.
One of the debates highlighted by the 1857 Matrimonial Causes Act was what the function of a family court should be. Should it try to prevent divorce, or enable it to take place more effortlessly? Should it determine public morality, protect it, or have no influence either way? Should it act in the interests of its clients, the adults or, contrary to the practice in every other area of law, in the interests of a third party, the child, and thus become a form of social service? Are marriage and divorce private matters between two individuals or public affairs which should rightly be the concern of the public and the state? Are adultery and illegitimacy worse societal dilemmas than a high rate of divorce? These questions remain unresolved and are seldom asked; the issue is being decided by default and judicial dictat, rather than through public debate.
The Second World War led to a surge in divorce; petitions trebled. The new Lord Chancellor, Lord Jowitt, estimated there was a backlog of 25,000 cases, far more than the seven High Court judges could possibly handle. The cost and limited availability meant that not everyone whose marriage had broken down was able to divorce and this resulted in many illicit unions and illegitimate children. In 1947 a certain Mr Allen returned home from the War – during which time he had the misfortune to be taken prisoner – to find his wife living in adultery. We may imagine he trusted he would be given custody of the couple’s eight-year-old daughter. He was the last man so to do. Judge Wallington awarded sole custody to Allen’s wife (Allen v Allen, 1948), notwithstanding the fact that the father ‘had been gravely wronged’, applying for the first time a principle of ‘no fault’, which meant that the behaviour of neither party would be taken into consideration; the child’s ‘interests’ should be paramount and overrule those of her parents. An appeal before the Lords Justice Wrottesley and Evershed failed.
You might think the decision was the correct one: the child had lived with her mother for the duration of the War, and her father may not have been best placed to care for her. Yet this ruling meant that a mother could now divorce with the expectation of being given custody of her children regardless of how she had behaved. Application of the law had changed significantly, but without parliamentary consent. Adultery was no longer considered detrimental to a child’s welfare. Henceforth, breaches of the marriage contract had no influence in determining children’s issues, and the contract itself was thereby gravely undermined; the introduction of the ‘no-fault’ principle into matrimonial law had begun.
In the same year Lord Denning’s Committee on Procedure in Matrimonial Causes complained that divorced parents had ‘disabled themselves from fulfilling their joint responsibility’, and the courts were ‘poorly fitted’ to safeguard children’s interests which had been subordinated to those of their parents. It is a familiar complaint from the family justice establishment and one which excuses further intervention. The Committee’s recommendation, that the County Courts be enabled to take on divorce cases, accepted in principle by the previous Government, was rejected by the new Labour Government, whose policy bias was still towards reconciliation. A characteristic English fudge was found, however, by making County Court judges Commissioners of the High Court with power to try divorce cases.
A proposal was presented to Lord Jowitt by Lord Merriman, who succeeded Lord Merrivale as President, for tribunals consisting of a lawyer and a welfare worker or probation officer which would consider, first, reconciliation and then, if that proved impossible, financial issues and custody. Finally a consent order would be drawn up. The scheme had much to recommend it and was notable in that it would have considered financial and custody matters jointly – a measure which has proven efficacy; Jowitt thought the idea ‘really great’ and it had the unanimous support of judges and the clergy, but the Law Officers were united in their opposition.
Denning’s Committee made 49 recommendations. The first, never heeded, was that the judge should deal with the future of the children on the same day he dealt with the divorce. The second was to appoint court welfare officers who would report to the court on the child’s welfare, an extension of the existing investigatory role of probation officers. In 1950 a probation officer was appointed as court welfare officer to the London divorce court, and in 1957 this scheme was extended to all divorce courts. The fact that these officers were expected to perform the two very disparate tasks of investigation and conciliation explains the unfortunate circumstance that CAFCASS continues to have its origins in the probation service.
A Royal Commission was established in 1951 whose nineteen-strong membership, despite the attempts of the Government to select ‘ordinary’ men and women with broad and open minds, was overwhelmingly middle and upper class; nine were lawyers – hardly representative of the public. They were polarised between those who endorsed the need to acknowledge breakdown even where no matrimonial offence had been committed and considered that a marriage which had broken down should be terminated by the mutual consent of the parties and those who were bitterly opposed to collusion, rejected the doctrine of ‘breakdown’ and demanded that the determining principle should remain the demonstration of one of the matrimonial offences. Divorce by consent, they believed, would be ‘disastrous to the nation’; the function of the law was to provide relief where wrong had been done, not to provide an easy escape from a worn-out marriage. Despite the huge changes in society since, no subsequent Royal Commission has been established to examine these issues.
In 1956 – after four years of deliberation – the Commissioners produced the Morton Report which took Lord Denning’s concerns further; the Commissioners’ predominantly legal background was obvious in the condescension they displayed towards parents’ behaviour. They were most concerned by cases in which parents did not contest custody: the consequent lack of judicial involvement might result, they felt, in children remaining with the least suitable parent. They considered separating parents could not be trusted to look after their children’s interests and lamented their tendency ‘to take the duties and responsibilities of marriage less seriously than formerly’: marriages which would have survived in earlier times were breaking up. They attributed this to the growing modern emphasis on individual rather than societal needs and on the pursuit of personal gratification regardless of the consequence to others. Divorce was seen no longer as a last resort but as a quick-fix solution to marital pressures. The most significant contributory factor behind this was female emancipation, to which both men and women were responding poorly,
Some husbands find it difficult to accept the changed position of women: some wives do not appreciate that their new rights do not release them from the obligations arising out of marriage itself and, indeed, bring in their train certain new responsibilities (Morton, 1956).
Reversing this pernicious trend clearly lay beyond what could be achieved through legal reform, especially now the judiciary had let the genie out of the bottle. The Commissioners questioned whether a society in which divorce was rampant was in any way preferable, or had fewer challenges, than one in which divorce was abolished altogether. Instead, the Report recommended a greater sense of responsibility for children achieved through wider education, instruction before marriage and marriage guidance once problems arose. The Commissioners’ plea fell on deaf ears; following a decline immediately after the War the divorce rate continued its inexorable rise.
The resulting Matrimonial Proceedings (Children) Act 1958 obliged parents to file with the court a statement of the arrangements to be made for the care of their children, imposing judicial scrutiny on the privately agreed custodial arrangements of every divorcing couple; divorce would be allowed only if the court were satisfied. State intrusion into the family had taken a large step forwards, but things were due to get much worse. The measure was finally repealed under the Children and Families Act 2013.
In 1962 the Labour MP for Pontypool, Leo Abse, launched a Private Member’s Bill based on the principle, incomprehensible to the Victorians, that there was no point in recrimination in a marriage which had irretrievably broken down. Abse sought to minimise hostility by making divorce easier, and by removing the necessity for both parties to agree to a divorce which obliged many to live in illegitimate unions. He believed this would reduce illegitimacy and strengthen marriage and the family. Nevertheless, what he proposed would mean a spouse could be divorced, against his will, and without him having committed any matrimonial offence, a move which represented a fundamental change to English divorce law and would have consequences Abse never contemplated. It also removed from the process any sense that divorce was socially irresponsible.
Two reports commissioned in 1966 reflected the continuing dispute, reaching contrary conclusions: the Archbishop of Canterbury’s Group recommended an inquest into each divorce, examining why the marriage had broken down (Archbishop of Canturbury’s Group, 1966); the newly formed Law Commission, a left-wing quango set up by Harold Wilson in 1965, with strong links to the legal and social-work professions, wished to remove the notion of ‘fault’ entirely, on the grounds that it increased ‘bitterness, distress and humiliation’ (Law Commission, 1966).
The Divorce Reform Act 1969 which followed was inevitably another traditional compromise between these two positions. The grounds for divorce of adultery, cruelty, desertion and incurable insanity were modified into the five ‘facts’ of desertion, adultery, separation with consent, separation without consent, and ‘unreasonable behaviour’, a new, vague and subjective catch-all which replaced the objective ground of ‘cruelty’ and required no evidence if an allegation were to be accepted. Parliament intended that the courts would adjudicate on these facts, but the courts have handed the responsibility to the petitioner. One of these facts then had to be used to justify the single new ground for divorce of irretrievable breakdown of the relationship. The doctrines of collusion and condonation were consigned to the history books. The Act retained the requirement for the courts to consider parties’ behaviour and did not fully enable divorce by consent; parties had to have been separated for two years to qualify for ‘no-fault’ divorce, and so Abse’s ideal of removing hostility and rancour was not fully realised.
The reality, however, was that judges were routinely shunning this statutory duty, the Act did nothing to ‘buttress’ marriage, as intended, and divorce became easily procured provided the parties agreed. The legislators had created a monster: an uncontested allegation of adultery was a rapid route to divorce and used in a quarter of cases; it was only exceeded by ‘unreasonable behaviour’ which now enabled 60% of divorces for the most frivolous of reasons – if the petitioner seeking divorce considered a particular behaviour unreasonable, then in the eyes of the court it was. Petitions more than doubled: in 1969 there had been 51,000 divorces; by 1972 there were nearly 120,000, affecting 131,000 children. Far from there being a reduction in illegitimacy, births outside wedlock burgeoned from 8% in 1971 to 50% today. A number of factors have been proposed to explain this: the establishment of divorce on the grounds of irretrievable breakdown, the introduction of legal aid in divorce cases, the introduction of the welfare state, the erosion of the social stigma attached to divorce and the expectation of child custody.
These changes, rolled out in virtually every jurisdiction across the western world, constituted the largest, most reckless social experiment in history, and completely shattered the concept of marriage as a legally binding contract. They removed the guarantee that a child should have a father and that a father could know his child to be legitimate: the very purpose of marriage. They led to a rapid rise in divorce, and a corresponding rise in illegitimate, fatherless children. This was the West’s Bolshevik Revolution. As G. K. Chesterton had observed in 1918, ‘The obvious effect of frivolous divorce will be frivolous marriage’ (Chesterton, 1918): because marriage was no longer the indissoluble institution it had once been couples had no longer to enter into it so seriously: they knew when things went wrong they could easily escape rather than work out their differences. As marriage came to be viewed as less binding so the number of divorces increased, and pressure built to change the system even further. This was reinforced by the naïvely romantic notion that if a first marriage wasn’t perfect the next would always be better.
The divorce revolution has been devastating to the institution of the family, leading to huge increases in single motherhood and social pathology. Divorce and its fallout have led to a massive growth of the state and in the numbers of state officials who have a vested interest in encouraging divorce and societal breakdown. Nowhere is this more apparent than in the family courts and the domestic violence, child protection and child support industries. The primary function of many of these officials is to remove the father and let in the state. This creates a wide range of further dysfunctions which the state can address through further expansion. These fathers are then criminalised and can be arrested for sending their children birthday cards or unintentionally bumping into their children in a public place. Fatherhood is ‘encouraged’ through the further state intervention of government initiatives, contact centres, and phony fathers’ groups. Divorce has become an offensive weapon to politicise and criminalise fatherhood and justify a huge expansion of state bureaucracy. In this grand battle between the family and the state the family is losing.
Hyde v Hyde and Woodmansee, [L.R.] 1 P. & D. 130 (1866).
Allen v Allen,  2 AER 413 CA (Court of Appeal 1948).
Archbishop of Canturbury’s Group. (1966). Putting Asunder: A divorce law for contemporary society. SPCK.
Baskerville, S. (2002, November). The politics of family destruction.
Chesterton, G. K. (1918). The Superstition of Divorce.
Denning, A. (1947). The Divorce Laws.
Dickens, C. (1852-53). Bleak House. London.
Hansard. (1934). 15th May.
Law Commission. (1966). Reform on the Grounds of Divorce: The Field of Choice, Law Commission No. 6. London: Law Commission.
Morton, F. D. (1956). Royal Commission on Marriage and Divorce: Report 1951-1955. London: HMSO.