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. i 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. ii 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. iii 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. iv 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% v 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 vi 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 vii 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.