On 6 April the Divorce, Dissolution and Separation Act 2020 that removed all fault from divorce in England and Wales will have been operational for two years. Critics have argued that it was enacted without principle or forethought, reducing marriage to the status of ‘a tenancy contract’ and making it ‘less binding than a car lease’. Available data suggests that its early impact in terms of quantity of applications is minimal compared with previous reforms, such as the Divorce Reform Act 1969 which first introduced divorce by mutual consent, but, more significantly, that a quarter of all applications are now made jointly online under the guidance of a single solicitor (if any). Though procedurally such practice was beyond the imagination of Victorian legislators, the concept of no-fault divorce was not. It horrified them and led to the passing in 1857 of the least permissive divorce law possible. But did the legislating of any divorce – however limited – also make the current system inevitable?

Decadent divorce 

Before 1857 divorce had been a decadence, accessible only to the wealthy through a long process involving three tribunals and offering relief for the only marital offence sanctioned by scripture: adultery. It was granted by Act of Parliament, but only after a cuckolded husband had first successfully sued his wife’s paramour for damages, in a common-law action known as criminal conversation, and secured permission from the ecclesiastical courts to live apart from her. Wives had no similar recourse to damages and had only ever been granted a divorce on proof of their husband’s bigamy or incest.

With divorce under this system taking up to three years to finalise at an estimated cost of £1,000-£3,000 depending on how vigorously it was defended, it is unsurprising that it was rare: 324 divorces were granted between 1670 and 1857 in England and Wales, of which only four were to female applicants.

Inequitable though this system was, there were no great calls for reform. Statutory divorce was only considered in the 1850s as part of a broader overhaul of Britain’s untidy court system, motivated by a desire to modernise, rationalise and improve efficiency. Yet it immediately proved contentious. The Church was opposed to handing over jurisdiction. Parliamentary opponents, led by Gladstone, argued that the Matrimonial Causes Act introduced by the Palmerston government in 1857 – which aimed to make divorce accessible to all ranks and both sexes – treated a matter that did not belong to them with ‘unprecedented levity’ by attempting to make sacred rites ‘the mere creatures of our will’. Debates were heated; there were threats of filibustering and counter-threats that Parliament would sit throughout the summer until it was done. Fears that legislation would open the floodgates on divorce were heightened by scaremongering that Britain would become like Prussia, where divorce by mutual consent was legal and contributed to 3,000 divorces a year in a population of less than half that of Britain.

In response the attorney-general, Richard Bethell, assured Parliament that the government’s proposal made ‘no material alterations’ to existing practice; in the Lords the Duke of Argyll further asserted that if legislators strictly adhered to the ‘divine permission’ of divorce for adultery they had no reason to fear that they would afterwards ever have to admit other grounds. Neither argument proved accurate. The Act was passed into law essentially as it was presented and, though never intending to be revolutionary, sparked a campaign for more liberal divorce that continued until mutual consent was legislated a little over a century later.

Double standards

Two key factors contributed to this state of affairs: the Act’s inherent inequalities and the condoning of press coverage of any cause that came before the newly formed court.

Of inequalities, most obvious was the sexual double standard. The Act enabled a husband to divorce his wife for a single act of adultery; a wife could only divorce a husband for aggravated adultery – that is, adultery compounded by another offence, such as cruelty or desertion. A husband retained the option of claiming damages; a wife still could not. Though opposed to divorce, Gladstone had foreseen that it would be ‘impossible to do a greater mischief’ than allow the Act to pass under these terms. Yet enacted it was, with the double standard justified on the basis that wifely adultery was a greater offence due to the risk of pregnancy. It was also feared that if an unhappy wife were allowed to divorce for simple adultery, her husband might be tempted to do ‘the noble thing’ to allow her to divorce him. In legal terms this was collusion that, if discovered, could prompt a second trial to overturn any decree illegally obtained. Yet still the unequal provision was deemed necessary and women often paid the price.

As desertion initially had to be upwards of two years’ duration (with no financial support) and cruelty needed to include physical violence or the apprehension thereof sufficient to impact health, it is immediately obvious that by such legislation wives would, and often did, suffer more and for longer in unhappy marriages than husbands.

Extensive press reporting, meanwhile, was condoned as a deterrent to prevent divorce becoming ‘popular’. But it also highlighted deficiencies in the law as nothing else could. How was it right, for example, that Mrs de Vere Beauclerk’s 1890 petition to divorce her husband for the flagrant flaunting of his numerous admitted infidelities during 28 of their 32 years of marriage – which doctors attested had undermined her health – could be denied because it did not meet the accepted definition of ‘cruelty’? Or that the Hon. Wilfrid Brougham’s plea should be refused, when the wife who left him 20 years earlier lived openly with another man and bore him two children, simply because Brougham had filed his petition with ‘undue delay’ in the misguided hope that his wife might repent and return?

Stories such as these were recounted nationwide in the increasingly popular press, in both serious factual accounts and sensational narratives on an almost daily basis. As the century wore on, editors increasingly passed their own moral judgements on all aspects of court activity, naming and shaming the guilty, such as the 7th Baron Howard de Walden, who found himself branded ‘a creature whom every honest man would be glad to thrash within an inch of his disreputable life’ for his ungentlemanly conduct towards his wife. The ‘gross and flaunting immorality’ apparently pervading society came under increasing attack. As such, just as the court’s permanent judges are said to have become the arbiters of acceptable behaviour in marriage, so the press became the mouthpiece by which this behaviour was impressed upon an increasingly scandalised public. The translation of abstract legal terms into living examples inevitably had consequences.

At the divorce hotel

The moral argument for reform that gained momentum in the late 19th century was taken up by Frank, 2nd Earl Russell, the grandson and heir of former prime minister John Russell, in the early 20th. Frank Russell had spent ten years trying to extricate himself from an unfortunate three-month marriage in the 1890s and channelled all his experiences into the first Bill to attempt to substantially rewrite the law, presented to the Lords in 1902. It included divorce for offences then considered mere aggravations to adultery, along with others that effectively amounted to desertion, such as long-term imprisonment and incurable insanity. It also included county court jurisdiction for the poor, whose cause had been taken up by largely middle-class campaigners. However inclusive the Act was intended to be, the very fact that suits were heard in London and cost a minimum of £50 had effectively excluded the majority of Britons. Outraged, the Lords gave Russell’s proposal short shrift, clinging to the arguments of the 1850s.

Not until 1923 was the sexual double standard removed. The effect was as predicted. But the increase in so-called ‘hotel divorces’, in which husbands either gave or appeared to give their wives grounds for divorce (including to Wallis Simpson), in conjunction with the declining influence of Church over state, only led to calls for greater tolerance. (The practice of ‘hotel divorce’ was satirised by A.P. Herbert in his 1934 novel Holy Deadlock). The majority of Russell’s suggestions were implemented in 1937 and by 1969 lawmakers were ready to admit mutual consent – but only after two years’ separation.

Change of mind

In removing all fault from divorce the 2020 Act has effectively changed mutual consent into the simple right of either spouse to change their mind and apply to divorce without delay. The moral implications of this will no doubt be the subject of future debate. The justification, however, has been that divorce – now ‘popular’, or at least normalised – should be as painless as possible, predominantly for the benefit of any children who, in Victorian times, were little considered beyond the question of custody. Attitudinal shifts from divinity to humanity and technological advances increasingly made this reform inevitable. The irony is that this last shift only came about through legal practitioners recognising that an increasing number of applicants were, in an attempt to accelerate the process, inventing allegations of the very offences campaigners had spent decades trying to abolish, thereby making a mockery of the 1969 Act. The one constant in divorce law, it transpires, has been collusion; the one requisite that remains in marriage, daily consent.

Ruth Derham is the author of Decadent Divorce: Scandal and Sensation in Victorian Britain (Amberley, 2024).