The Reform of English Divorce Law

212 Pages·2017·1.2 MB·English

The Reform of English Divorce Law: 1857–1937

Henry Kha
BA(Adv)(Hons), JD

A thesis submitted for the degree of Doctor of Philosophy at
The University of Queensland in 2017
TC Beirne School of Law
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.
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Declaration by author
This thesis is composed of my original work, and contains no material previously
published or written by another person except where due reference has been made
in the text. I have clearly stated the contribution by others to jointly-authored works
that I have included in my thesis.

I have clearly stated the contribution of others to my thesis as a whole, including
statistical assistance, survey design, data analysis, significant technical procedures,
professional editorial advice, and any other original research work used or reported
in my thesis. The content of my thesis is the result of work I have carried out since
the commencement of my research higher degree candidature and does not include
a substantial part of work that has been submitted to qualify for the award of any
other degree or diploma in any university or other tertiary institution. I have clearly
stated which parts of my thesis, if any, have been submitted to qualify for another
award.

I acknowledge that an electronic copy of my thesis must be lodged with the
University Library and, subject to the policy and procedures of The University of
Queensland, the thesis be made available for research and study in accordance with
the Copyright Act 1968 unless a period of embargo has been approved by the Dean
of the Graduate School.

I acknowledge that copyright of all material contained in my thesis resides with the
copyright holder(s) of that material. Where appropriate I have obtained copyright
permission from the copyright holder to reproduce material in this thesis.

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Publications during candidature
Henry Kha and Warren Swain, “The Enactment of the Matrimonial Causes Act 1857:
The Campbell Commission and the Parliamentary Debates” (2016) 37(3) Journal of
Legal History 303.
Henry Kha, “Evaluating Collaborative Law in the Australian Context” (2015) 26
Australasian Dispute Resolution Journal 178.
Henry Kha, “Faith in the Courts: The Aggrieved Faithful Seeking Standing in
Australia” (2014) 26(1) Bond Law Review 148.

Publications included in this thesis
Henry Kha and Warren Swain, “The Enactment of the Matrimonial Causes Act 1857:
The Campbell Commission and the Parliamentary Debates” (2016) 37(3) Journal of
Legal History 303 — Incorporated from Chapters 1 and 2.
Contributor Statement of contribution
Henry Kha Wrote and edited the paper (65%)
Warren Swain Wrote and edited the paper (35%)

Contributions by others to the thesis
No contributions by others.

Statement of parts of the thesis submitted to qualify for the award of another
degree
None.

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Acknowledgements
Søren Kierkegaard once wrote, “Life can only be understood backwards; but it must
be lived forwards.” It has taken three years to complete the PhD and I am deeply
grateful to those who have helped me on this journey. I would like to thank my father
Chanh Kien Kha (柯政健) and my mother Jiao Liang Liu (刘良娇) for all their support.
I am also sincerely thankful for the guidance of my supervisors Professor Warren
Swain and Dr Karen Fairweather.

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Keywords
Divorce Law, Victorian England, Legal History, Matrimonial Causes Act 1857, Royal
Commission, Law Reform, Married Women’s Property Rights, Family Justice
System.

Australian and New Zealand Standard Research Classifications (ANZSRC)
ANZSRC code: 180113, Family Law, 75%
ANZSRC code: 220204, History and Philosophy of Law and Justice, 25%

Fields of Research (FoR) Classification
FoR code: 1801, Law, 75%
FoR code: 2202, History and Philosophy of Specific Fields, 25%

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Table of Contents
Abstract i
Declaration by Author ii
Publications during Candidature iii
Acknowledgements iv
Keywords v
Introduction 1
Chapter 1: The Concept of Divorce Law
1.1 The Influence of the English Reformation 11
1.2 Divorce Law in Georgian England 18
1.3 The Reform of the Ecclesiastical Courts 28
Chapter 2: The Enactment of the Matrimonial Causes Act 1857
2.1 The Pressure for Divorce Reform 37
2.2 The Campbell Commission 45
2.2.1 The Commissioners of the Majority Report 45
2.2.2 The Findings of the Majority Report 48
2.2.3 The Dissent of Lord Redesdale 55
2.3 The Parliamentary Debates 58
2.3.1 The Initial Attempts 58
2.3.2 The Passage of the Bill 62
2.3.3 Reflections on Divorce Reform 70
Chapter 3: The Divorce Court
3.1 The Court for Divorce and Matrimonial Causes 74
3.2 The Establishment of the PD&A Division 82
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3.3 Court Orders 88
3.3.1 Statutory Damages 88
3.3.2 Separation Orders and Restitution of Conjugal Rights 92
3.4 The Late Victorian Court 97
Chapter 4: Grounds and Bars to Divorce
4.1 The Grounds for Divorce 101
4.1.1 Adultery 102
4.1.2 Sexual Offences 106
4.1.3 Cruelty 113
4.1.4 Desertion 117
4.2 The Bars to Divorce 120
4.2.1 Collusion 121
4.2.2 Connivance 124
4.2.3 Condonation 127
4.2.4 Petitioner’s Adultery 130
4.2.5 Recrimination and Unreasonable Delay 134
Chapter 5: The Campaign for Reform of the Matrimonial Causes Act 1857
5.1 The Expansion of Married Women’s Property Rights 137
5.2 The Campaign for Divorce Reform in Edwardian England 146
5.2.1 Hunter, Russell and Gorell Bills 146
5.2.2 The Gorell Commission 154
5.3 The End of the Matrimonial Causes Act 1857 159
5.3.1 Matrimonial Causes Act 1923 159
5.3.2 Matrimonial Causes Act 1937 163
Conclusion 172
Bibliography 178
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INTRODUCTION

Although divorce was possible in England prior to the enactment of the Matrimonial Causes
Act 1857, 20 & 21 Vict, c 85, marriage was not dissolved by a decree of the civil courts (apart
from a brief period during the Interregnum). Divorce was a three stage process involving the
Assizes, the Ecclesiastical Court and the House of Lords. The thesis aims to explore the
motivations for the 1857 legislation and the impact of the statute. It focuses on the eighty
years when the 1857 Act operated. The legislation is set against the historical context of the
older law. Victorian England is often characterised as an age of reform which saw pressures
for change met with some resistance.1 K Theodore Hoppen argues the 1857 Act was biased in
favour of men because of the double standards in the grounds for divorce between husbands
and wives.2 However, Hoppen also maintains the Act was “not entirely devoid of reforming
content with respect to women’s rights” and cites its protection of matrimonial property for
separated, deserted and divorced wives.3 The tension between reform and continuity was
characteristic of Victorian England.4 Stephen Cretney states:
Why then was the 1857 Act passed? Its origins certainly do not lie in any concern for
abstract justice. Rather they lie in the pressing need, highlighted by the growth in
personal wealth associated with industrialisation, to get rid of the ramshackle probate
jurisdiction exercised by 350 or so ecclesiastical authorities and to replace it with a
more efficient system of dealing with deceaseds’ property.5
The “pressing need” included public pressure from judges and politicians to abolish the
Ecclesiastical Court’s jurisdiction over matrimonial causes and probate, and the broader
sympathy with Benthamite utilitarian law reform that persisted during the Victorian era.6 It is
only through an understanding of the legal doctrine that it is possible to properly assess the
changes brought about by the 1857 Act. The thesis argues that the 1857 Act and its later
operation has been understood too narrowly. The 1857 Act was not merely a procedural

1 Llewellyn Woodward, The Age of Reform 1815–1870 (Oxford University Press, 1938).
2 K Theodore Hoppen, The Mid-Victorian Generation 1846–1886 (Oxford University Press, 1998) 200.
3 Ibid; see Chapter 2.3.1.
4 During the mid-nineteenth century, there was ongoing debate over the fusion of equity and common law that
culminated with compromise. The separate courts of common law and equity were unified under the High Court
of Justice, but common law and equity remained separate doctrines under the Supreme Court of Judicature Act
1873, 36 & 37 Vict, c 66.
5 Stephen Cretney, Family Law in the Twentieth Century (Oxford University Press, 2003) 162.
6 William Cornish, “Law of Persons: Family and Other Relationships” in J Stuart Anderson, Ray Cocks,
Michael Lobban, Patrick Polden, and Keith Smith (eds), The Oxford History of the Laws of England: Volume
XIII (Oxford University Press, 2010) 781–4; see Chapters 1.3 and 2.1.
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change as is so often claimed.7 An analysis of legal doctrines reveals more complex factors at
work. Secularisation of the law, the abolition of ecclesiastical jurisdiction and the provision
of some protection of married women’s property were all factors that took reform outside of
the realm of merely procedural change. This critical fact has sometimes been overlooked by
feminist and social histories. 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 1857 Act was not even the end of the story. The way that the Act evolved was influenced
by cultural change. It is a mistake to see law and culture as conceptually distinct rather than
related to one another.8 The law and its operation exist within a particular culture. Legal
change is inevitably bound up with cultural change. Key cultural changes include a growing
acceptance of divorce, especially among the middle class.9 In part this was built on increasing
acceptance of a more liberal view of marriage, but also dissatisfaction with the existing law.
At the same time there was a gradual cultural rejection of marriage as solely a religiously
administered sacramental institution,10 and a greater acceptance of marriage as a civil
contract which ultimately influenced the law of divorce.11 Unsurprisingly there was also
significant resistance to the introduction of the 1857 Act from Gladstone and others founded
on their conservative Christian beliefs on the sanctity of marriage. Although they failed to
prevent the introduction of the Bill, they managed to introduce a double standard between the
sexes in obtaining divorce and limited divorce to adultery based on narrow ecclesiastical
precedents.
The literature on divorce law in Victorian England can be divided into three main categories:
social history, feminist history and legal history. Social history is concerned with a historical
understanding of the cultural practices and social behaviour of ordinary people in their
everyday lives rather than that of monarchs and aristocrats. It is based on an eclectic mix of
methodology deriving from anthropology, sociology and statistics. The appeal of social
history lies in its ambition to present an objective and scientific history. However, a social
historian is not immune to prejudice and statistics have significant limitations. GR Elton
notes social historians of the family, such as Lawrence Stone, are good at presenting intricate

7 Allen Horstman, Victorian Divorce (St Martin’s Press, 1985) 78; Sybil Wolfram, “Divorce in England 1700–
1857” (1985) 5(2) Oxford Journal of Legal Studies 155, 178; MK Woodhouse, “The Marriage and Divorce Bill
of 1857” (1959) 3 American Journal of Legal History 260, 274–5.
8 Naomi Mezey, “Law as Culture” in Austin Sarat and Jonathan Simon (eds), Cultural Analysis, Cultural
Studies, and the Law: Moving Beyond Legal Realism (Duke University Press, 2003) 37.
9 Michael Mason, The Making of Victorian Sexuality (Oxford University Press, 1994) 124.
10 Marriage Act 1836, 6 & 7 Wm IV, c 85.
11 Lawrence Stone, Road to Divorce (Oxford University Press, 1995) 353–4.
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