history of divorce

(breaking up was hard to do!)

The courts of the church and the lay courts were separated in the reign of William the Conqueror and from that time both courts could deal with matrimonial cases. In England from the middle of the Twelfth Century the church claimed the right to deal with issues relating to marriage. For ecclesiastical purposes the country was divided into the provinces of Canterbury and York and each province was in turn divided into dioceses with their own Bishop. The diocesan courts were known as consistory courts and they dealt with the majority of matrimonial cases.

The most obvious difference between the judgements handed down by the ecclesiastical courts and nowadays is that it was virtually impossible to get a divorce but relatively easy to get a decree of nullity of marriage (i.e. an annulment)

Before the Reformation the fact that the church regarded marriage as a sacrament made it impossible to get a divorce without recourse to the Pope, who rarely if ever granted a divorce decree. Because of this the most popular type of decree sought by those whose marriages had broken down was a decree of annulment on the grounds of pre contract (i.e proof of a previous binding contract to marry another) or consanguinity or affinity (i.e. connected by blood or marriage).

Highly artificial rules evolved on what could be relied on for a decree of nullity for example a marriage could be annulled if a husband had stood as godfather to his wife’s cousin. The marriage of Roger Donnington was declared null and void because before the marriage he had sexual intercourse with a third cousin of his future wife.

In the late 16th and early 17th centuries there was great uncertainty on matrimonial issues, for example the pre contract ground of nullity was abolished in 1540 but revived in 1548. In 1602 Archbishop Bancroft sitting in the Star Chamber stated that the ecclesiastical courts could not grant a divorce, i.e. dissolve a marriage absolutely. From that time on those who wanted a divorce had to petition parliament by a private bill.

The ecclesiastical courts granted what are now known as decrees of Judicial Separation (then known as divorces a mensa et thoro) 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 the disobeyer being pronounced contumacious (disobedient) and excommunicated. In 1813 excommunication was substituted by six months imprisonment. The ecclesiastical courts also granted nullity decrees on the grounds of consanguinity or affinity, mental incapacity, impotence, force error impuberty (under age) or a prior existing marriage. A suit of jactitation of marriage could be taken out against a person who had falsely asserted or boasted that he or she was married to another. The sentence was an order to keep perpetual silence, this relief was finally abolished by Part III of the Family Law Act 1986!

Our modern law of divorce was enacted in 1969 (The Divorce Reform Act). From this time the sole ground of divorce was irretrievable breakdown of marriage which must be proved by one of the following facts, adultery; unreasonable behaviour, desertion for two years, living apart for two years (where the other consents) and living apart for five years.