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Divorce & Family Law

Until 1813 the Ecclesiastical Courts controlled marriage regulations

Desertion was not defined as a matrimonial offense 

A deserted spouse could ask for a 

  • Decree of Restitution of Conjugal Rights
    • Conjugal rights in marriage refer companionship, support, comfort, and sexual relations

Disobeying the Decree was punishable by excommunication

The Ecclesiastical Courts Act 1813 replaced excommunication with up to six months imprisonment 

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Couverture

Women had no legal identity 

  • she was first her father’s then her husband’s property
  • he was  responsible for her finances and debts 
  • a wife’s loyalty, companionship, affection and intimacy could be seen as her husband’s property 

So if a wife committed adultery her husband could seek damages for that loss by suing the other man for Criminal Conversation

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Divorce

Divorce could only be  granted by Parliament 

  • only for adultery
  • Wives could only initiate a divorce Bill if the adultery was compounded by life-threatening cruelty
  • The high costs meant only the wealthy could afford it

Royal Commission 

In 1853 a Royal Commission recommended the transferral of divorce proceedings from Parliament to a special court.

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Matrimonial Causes Act 1857

  • Abolished Criminal Conversation
  • Enabled couples to obtain a divorce through civil proceedings

A husband only had to prove his wife’s adultery

 

A wife had to prove her husband’s adultery and an additional aggravating factor

 

  • cruelty
  • two years of desertion 
  • incest 
  • bigamy
  • rape 

Rape could only be considered as an aggravating factor if the couple had already gained a Judicial Separation 

Clause 7 of the 1857 Act introduced Judicial Separation

  • a court order that allows a married couple to live apart without dissolving their marriage. 

Rape within marriage was not made illegal until 1991

  • custody and maintenance of Children were covered by the Act
  • if a wife had committed adultery then the custody of children was usually given to the father
  • a deserted wife could protect her property and income from husband

The Custody of Infants Act of 1839 permitted a mother to petition the courts for custody of her children 

  • if aged under seven
  • for access to her older children

The Infant Custody Act of 1873  

  • allowed mothers to petition for custody, or access, to children aged under sixteen
  • the needs of the child rather than the rights of either parent was the guiding principle

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Matrimonial Causes Act 1864

Reduced the powers of a deserted wife to protect her property and income from her husband or any of his creditors by allowing him to apply to a court to discharge the order 

Married Women’s Property Act 1870 

  • Was not retrospective but it allowed women married after 1870 to be the legal owners of the money they earned and to inherit property and money
    • Any personal property a woman had in her own name before marriage was still legally her husband’s property.

Matrimonial Causes Act 1878

Provided limited protection for a wife facing marital violence and desertion

  • judicial separation could now be obtained through magistrates’ courts who could grant them
    • custody of their young children 
    • and financial maintenance

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Married Women’s Property Act 1882 

Abolished Couverture 

  • legally recognised a husband and a wife as two separate people 
  • a wife was now liable for their own debts
  • subject to bankruptcy laws 
  • could hold stock shares in her own name

Matrimonial Causes Act 1884
Statutory Desertion was established which gave the deserted spouse the
right to an immediate decree of Judicial Separation, and, if the
husband had also committed adultery, it allowed the wife to obtain an
immediate divorce

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Divorce and Judicial Separations were expensive and prohibitive for many

Divorce fees were roughly £30 to £40 (roughly a years wage for a labourer)

The Divorce hearings were held in Middlesex or Westminster Court

So, board & lodgings, loss of earnings and travel expenses were considerations

Divorce itself was based on proving adultery

These two factors led to the increased use of Deeds of Separation 

Drawn up by a solicitor it 

  • dated back to the 17th Century
  • written contract between husband and wife                                        
  • outlined how assets, property, and responsibilities would be divided
  • included arrangements for the wife’s maintenance and child custody