The powers given to the courts by the 1857 Act to make orders for family support after divorce were thus narrow in scope. Over the years gaps and obscurities revealed in litigation were spasmodically dealt with by both case law and amending legislation. For example, the courts (albeit at first rather grudgingly) held that the fact that a wife chose to divorce her adulterous husband did not debar her from seeking an order for maintenance against him.¹² But not even a (p.397) much bolder approach to statutory interpretation than was acceptable in the latter part of the nineteenth century could overcome the problems caused by the clear statutory words which restricted the courts powers to make orders against a husband for income maintenance to orders forsecured¹³ provision. It followed that the court had no power under the 1857 Act to make any maintenance order against a man who had ‘sufficient income from his labour’ to support his family but lacked assets¹⁴ on which the periodical payments could be secured.¹⁵ Fifty years had to go by before the Matrimonial Causes Act 1907 gave the court an effective power to order a divorced husband to make unsecured weekly or monthly payments¹⁶ for the wife’s maintenance and support.¹⁷ In theory at least, the divorced but property-less artisan or clerk¹⁸ could thenceforth be made to support the wife he had betrayed.

The 1857 legislation had thus clearly been framed primarily in the context of the wealthier families who had at least some capital, but it reflected the Victorian belief that capital was to be used to provide income and not to be spent. For this reason, the Act gave the court no power to order a husband to pay or transfer capital to the wife:¹⁹ maintaining the ex-wife was one thing, but dissipating the family capital was quite another.

(p.398) There was, however, one important exception to the principle that the Divorce Court had no powers to adjust²⁰ the parties’ capital entitlements.²¹ The 1857 Act clearly saw²² the typical situation as that of a husband divorcing his adulterous wife who would then remarry; and it seemed into lerable that the property preserved for her by the doctrine of the married woman’s separate estate should then pass to the seducer. As Lord Penzance subsequently proclaimed, it would ‘be an evil example if this Court were to decide that the entire fortune of a wealthy married woman was to be reckoned as part of the prospects of an adulterer, or the resources of a second home for a guilty woman’;²³ and the Act accordingly²⁴ provided²⁵ that the court could direct such settlement of an adulterous wife’s property as it thought reasonable for the benefit of the husband or children.

Decisions on the exercise of this power required the courts to assess ‘the nature and extent of the pecuniary charge operated by the wife’s criminality’;²⁶ and over the years the courts discharged this task with some enthusiasm. But a gap in their weaponry soon became apparent. The power to order a settlement of the wife’s property could only be exercised over property to which she was beneficially entitled;²⁷ and did not allow the court to vary the trusts of the marriage (p.399) settlements which governed the financial arrangements of many middle-and upper-class Victorian families. The discovery of this omission was apparently²⁸ something of a surprise;²⁹ but the Matrimonial Causes Act 1859³⁰ hastily conferred power on the court to ‘enquire in to the existence of ante-nuptial or post-nuptial settlements, and … make such orders with reference to the application of the whole or a portion of the property settled whether for the benefit of the children of the marriage, or of their respective parents as to the Court shall seem fit’. This power³¹ came to be freely exercised.³²

Narrow as the Divorce Court’s powers to make financial orders were, they remained substantially unamended until 1963; and major statutory reform only came with the acceptance of divorce for irretrievable breakdown of marriage under the Divorce Reform Act 1969.

(p.400) The principles upon which the court’s powers were exercised

The Matrimonial Causes Act 1857³³ directed the court in taking decisions about the wife’s maintenance to have ‘regard to her fortune (if any), to the ability of the husband, and to the conduct of the parties’ and make such order as it deemed reasonable …’;³⁴ and in this way (as judges constantly asserted) Parliament had vested in the judges ‘an unfettered discretion’ to be exercised ‘according to the particular circumstances of each case’.³⁵

The existence of a wide discretion to do, within the framework of the law, whatever was just in each case was a characteristic of the Divorce Court and had many obvious advantages in facilitating the resolution of the financial consequences of divorce. It also had obvious disadvantages; but it must be remembered that in the early days of judicial divorce, the law was administered by a handful of men who no doubt developed habits and practices known to the select group of counsel who appeared before them but not necessarily articulated. As Lord Merrivale P put it³⁶ there were certain ‘axiomatic matters’ (in that case the expectation that a wife would be awarded one-third of the husband’s income) ‘which a judge sitting here does not think it necessary to formulate in the presence of counsel of experience in cases of this kind’. For this reason, reported cases may not be as helpful as they might be³⁷ in assessing the actual practice of the court; whilst the existence of unarticulated assumptions, coupled with a lack of empirical data about the orders which the court did in fact make over the years mean that it is difficult to determine quite what were the principles upon which the court worked and how far those principles changed over the years. The statements of principle which the courts did make are often couched in extremely broad language which raise as many questions as are answered;³⁸ whilst the application of principles has ‘varied from decade (p.401) to decade’ since judges take into account the ‘human outlook of the period in which they make their decisions’. In the exercise of such a broad discretion, the law (it has been said)³⁹‘is a living thing moving with the times and not a creature of dead or moribund ways of thought’. In fact, the breadth of the discretion enabled the courts, applying the same legislation, to make orders in 1957 which would have seemed outrageously wrong a century before.⁴⁰

There were some recurrent questions, two of which merit discussion in some detail. How far should the parties’ conduct affect the outcome; and should a wife reasonably expect to be awarded a certain fraction of the husband’s income?

The significance of the parties’ conduct

Since it took a judicial decision to establish that a wholly blameless wife petitioning for divorce was entitled to claim maintenance from her former husband⁴¹ it is hardly surprising that the question of how the court should deal with cases where there was a dispute about responsibility for the breakdown continued to trouble the courts. The legislation specifically required courts considering maintenance to have regard to the ‘conduct of the parties’; and over the years the courts had to grapple with two distinct issues. First, how were they to seek to establish the relevant facts; and secondly, how far were the court’s findings to affect the actual outcome in financial terms?

Finding the facts

As we have seen, the Divorce Court (in contrast to the courts of common law)⁴² did not follow the adversarial mode traditional in English litigation. Rather, the courts were themselves to inquire into the facts alleged, so that their role (following the traditions of the Ecclesiastical Courts in which historically they had their origins) was essentially inquisitorial. Such being the theoretical basis, it might be thought to follow that the court would develop procedures whereby the statutory obligation to have regard to the parties’ conduct could be properly(p.402) discharged. But in practice the matter was, for two main reasons, much less straightforward.

The first complicating factor was that the court’s primary concern in divorce cases was whether it should dissolve the marriage or not. Only if a decree were granted did the court have power to grant what was ‘euphemistically’⁴³ called ancillary relief in the form of periodical payments⁴⁴ or orders varying or directing the making of settlements. Thus, the ‘auxiliary or supplementary jurisdiction’ to make financial orders could only be exercised after decisions had been made on the ‘more important’⁴⁵ question; and this notion was reinforced by rules of practice which required applications for maintenance and other financial relief to be the subject of a separate petition⁴⁶ only to be filed after the decree nisi had been made.⁴⁷ Ancillary relief applications were thus dealt with (as the Denning Committee put it in 1947)⁴⁸ at what was in effect a separate trial.

The second factor causing difficulty was that the decree itself seemed to conclude the question of who was guilty and who was innocent. The decree conclusively determined that the respondent had committed adultery; and in practice for many years the Divorce Court would decline to grant a divorce to a petitioner who had himself committed adultery. In this way the law reinforced the ‘binary concept’⁴⁹ that the conduct of a successful petitioner had necessarily been blameless, and that responsibility for the breakdown of the marriage rested exclusively with the unsuccessful respondent.⁵⁰ Of course, this had always been a crude simplification of the realities of human relationships and no doubt the conduct of the unsuccessful respondent was quite often much better than that of the successful petitioner,⁵¹ but at least the courts could determine the financial (p.403)consequences of divorce on the basis of who had been successful in the decree proceedings. However, after the World War I the courts became readier to grant a decree to a petitioner who had to seek the exercise of the court’s discretion to his or her own admitted adultery and this more humane approach towards allowing broken marriages to be terminated in law as they had been in fact no doubt considerably reduced the misery suffered by those involved. But it also increased the problems faced by the courts in deciding what financial consequences should flow from the dissolution. By 1950 Denning LJ could say⁵² that it was ‘common knowledge that, when parties are divorced, you cannot really tell which of the two was to blame merely by asking which of them obtained the decree’.⁵³

The difficulty of determining the relevant facts was increased by a curious procedural practice. Since the financial consequences of divorce were in theory of subsidiary importance it made sense to allow them to be handled, not by the judges of the Probate Divorce and Admiralty Division,⁵⁴ but by the Court’s Registrars⁵⁵(whose jurisdiction in these matters grew steadily over the years).⁵⁶ (p.404) In this way the Registrars became powerful judicial figures⁵⁷ able to deal with the things that were of real importance to the parties.⁵⁸ But not everyone believed this outcome to be satisfactory. In 1947, the Denning Committee⁵⁹ thought it wrong to leave such matters to a ‘decision in chambers on affidavit when the parties are not present’⁶⁰ and also believed that the system of adjudication of financial disputes failed to reflect the gravity of the issues for the parties.⁶¹ The Committee accordingly recommended that the ‘procedure in the Divorce court with regard to maintenance should be entirely changed’. The statutory duty imposed on the court to ‘have regard not only to the fortune of the wife and of the ability of the husband to pay’ but also ‘to the conduct of the parties’ was one which should be ‘tried by a Judge, and not by a Registrar’; and the Committee thought it should ‘be tried by the Judge who hears the divorce suit, because he is the person who hears the evidence as to the conduct of the parties and can better have regard to it than a Registrar who has only affidavits before him’. The Committee considered that to have all the issues heard on the same day by the judge on oral evidence with the parties present would give an ‘added sense of importance to the whole divorce process’;⁶² and that to have the assessment of financial matters made by the judge who had tried the divorce suit ‘would not only better carry out the intention of the legislature but would also save much time and money’ not least because there would only have to be ‘one hearing and one attendance necessary for those concerned and not two as at present’.

The Denning Committee’s recommendation was not implemented.⁶³ Indeed, over the years the restrictions on the powers of Registrars—in 1990 transformed into District Judges⁶⁴—to make financial orders were removed; and by the end (p.405) of the twentieth century it was they who handled the great bulk of what were still called ancillary relief applications.⁶⁵

The division made between the proceedings leading to the grant of a divorce and the subsequent proceedings about the consequential financial orders exposed another difficult problem. Suppose a man who recognised that the marriage was at an end, and was indeed himself anxious for a divorce⁶⁶ so that he could remarry, wanted to produce evidence about his wife’s conduct which could possibly affect the decision whether the court should grant the decree. Was he to be allowed to let the divorce petition go undefended and then seek to raise in the ancillary relief proceedings the matters which might have provided a defence to the petition, or did the doctrine of estoppel (or some variant of it) prevent him from doing so? Eventually⁶⁷ the courts adopted the view that, whilst it was not permissible to question in the ancillary relief proceedings the basis upon which the divorce had been granted—for example, that the man was in desertion and that his wife’s conduct had not given him just cause for leaving⁶⁸—the respondent would be allowed to rely on any other matters (for example, that there were extenuating circumstances which went some way (p.406) towards explaining or even justifying his conduct) which could be relevant to determining the financial consequences of the divorce.⁶⁹ In this way the courts produced a tolerably satisfactory compromise between the competing considerations of public policy;⁷⁰ but the difficulties were only finally removed in the 1970s as a consequence of the courts’ developing policy that considerations of conduct and culpability were, under the ‘irretrievable breakdown’ doctrine introduced by the Divorce Reform Act 1969, rarely relevant.

Effect of findings on the assessment of financial orders

By marriage a wife acquired the right to be supported by her husband for the rest of her life, and the courts soon settled that the object of the legislature in giving her a right to apply for financial provision after divorce was to provide a substitute for the support to which she would have been entitled had the marriage continued.⁷¹ If it was the husband who divorced his adulterous wife she might well be required to settle property to mitigate the damage which had been done to the husband and children. This seemed for many years quite simple, but the question whether a ‘guilty’ wife should have any claim to continued support from the husband caused far more difficulty.

It certainly seems that in the early days a wife who had committed adultery or deserted her husband could expect no order against him for financial support:⁷² after all, she would have forfeited her common law right to be maintained⁷³ and she had broken the terms implied by law into the marriage contract. But, as has already been pointed out, it had been the practice in the days of parliamentary divorce to ensure some provision for even an adulterous wife; and in 1883 the (p.407) Court of Appeal doubted⁷⁴ whether the courts had been correct in departing from the old parliamentary practice. In 1902 the Court of Appeal (in Ashcroft v. Ashcroft and Roberts)⁷⁵ finally accepted that the court did have an absolute discretion to make orders in favour of the guilty wife; but the discretion to do so was to be sparingly exercised. In the Ashcroft case:

After a three-day trial, the wife of a moderately prosperous⁷⁶ Liverpool timber merchant was found guilty of adultery and the court dissolved the 23-year-long marriage (in the course of which the wife had born five children). The wife was absolutely destitute and entirely without means or relatives to whom she could turn for support, whilst her poor health made it impossible for her to earn her own living. The trial judge⁷⁷ ordered the husband to ‘provide a small maintenance for her, so that she may not be turned out destitute on the streets’; and for this purpose £1 weekly (perhaps £50 in year 2000 values, and a sum significantly less than a manual labourer’s weekly wage) was considered sufficient. The husband, relying on the fact that there was no reported case in which the Court had given an allowance to the guilty wife unless there had been some fault on the side of the husband or he had received some financial benefit from the wife,⁷⁸ appealed against this order. He was unsuccessful.

The guilty wife was therefore not to be turned out into the streets to starve⁷⁹ but she could expect⁸⁰ no more than what came to be described as a ‘compassionate allowance’ to save her from utter destitution.⁸¹ Even if her husband were also guilty and only able to obtain a divorce by the exercise of the court’s discretion in his favour the court’s approach at the beginning of the twentieth century was that payment of an allowance to the wife could be justified only as a way of making the wife ‘reasonably safe from the terrible temptation which might otherwise assail her’.⁸²

This approach could not survive the increasing appreciation that divorce decrees often gave a misleading impression about the realities of the parties’ conduct and that in any event human behaviour was often more complex than had been appreciated by the divorce judges before the First World War. By the (p.408) late 1960s, some judges in the superior courts were able to say that the expression ‘compassionate allowance’ came ‘from a past age’ and had ‘no place’ in the contemporary law of maintenance;⁸³ and that accordingly even a guilty wife was not to be deprived of her right to maintenance unless her misconduct had been of a ‘really serious nature, disruptive, into lerable, and unforgivable’.⁸⁴

But theory as expounded by the higher judiciary and the practice of the courts up and down the country seem often to have been different. For example:

In Iverson v. Iverson⁸⁵ the husband had deserted his wife. On two occasions after he had left her she committed adultery. Apparently⁸⁶ ‘those exercising jurisdiction in maintenance matters in Newcastle’ shared the husband’s erroneous belief that an adulterous wife would not in any circumstances be awarded maintenance.

Even more remarkably:

In Porter v. Porter⁸⁷ a 42-year-old woman, married for 23 years to a man who had refused to buy clothing for the children and habitually fell in to long and morose silences, admitted that she had committed adultery after the marriage had broken down.⁸⁸ The County Court judge at Southend told her that she was accordingly in the position of a woman who had never married, and that she would be allowed only five pence a week maintenance. The Court of Appeal held that this was a fundamentally incorrect approach; and said that the judge⁸⁹ appeared ‘totally unaware’ of the modern principles governing the award of maintenance, and that his expressed views were ‘decades if not generations out of date’.

Such cases suggest that the superior courts found it difficult to secure any uniformity of approach in relation to the impact of conduct on the assessment of periodical payments;⁹⁰ and in practice:

(p.409)

‘The notion that a ‘guilty’ wife is virtually disqualified from obtaining an order for maintenance … persisted in the fact of strong authority to the contrary … [T]his … led to bitterly contested divorce cases in which the only real issue has been maintenance…⁹¹

In short, the judges found it difficult, even in the permissive 1960s, to make ‘conduct’ go away as a factor influencing divorce practice.

The Ecclesiastical Court in granting what was called permanent alimony to a wife separated from her husband, would usually quantify the amount so that the wife would have one third of the joint incomes; and the Divorce Court at first was content to follow that precedent.⁹² Hence, although there was no hard and fast rule⁹³ the court would normally⁹⁴ allocate to a successful wife petitioner⁹⁵ (p.410) such a sum as would bring her income up to one-third⁹⁶ of the joint incomes.⁹⁷

What was the justification for settling on one-third, rather than one-half or indeed any other fraction? The strongest influence seems simply to have been tradition: one-third was seen as the wife’s share in inheritance and other financial matters; but in 1966 the President of the Probate Divorce and Admiralty Division found a justification⁹⁸ in the fact that ‘in a typical case the court was concerned with three groups of needs—those of the wife, those of the husband and those of children for whose support the husband was liable’.⁹⁹

(p.411) Whatever the justification, the fractional approach continued to influence practice; and in 1947 the Denning Committee¹⁰⁰ described the one-third ‘rule of thumb’ as ‘inveterate’.¹⁰¹ But such a crude approach did not escape criticism. It was certainly not universally applied;¹⁰² and indeed the superior courts repeatedly denied that the assessment of maintenance had become a matter of arithmetic rather than discretion,¹⁰³ and one President of the Probate Divorce and Admiralty Division went so far as to claim that the ‘only principle to be observed is that [the court] should follow the statute’.¹⁰⁴

One-third approach not applicable to the rich or the poor: the emergence of needs and requirements as a criterion

By the beginning of the twentieth century it had become clear that the courts would be reluctant to allocate to the wife an income greatly in excess of the amount needed to support her usual needs and standard of living:

In Kettlewell v. Kettlewell¹⁰⁵ husband and wife had enjoyed a lavish standard of living with a joint¹⁰⁶ income of some £20,000 (more than £1 million in year 2000 values). The court awarded the wife an annual sum sufficient to give her an income of £3,000 (£180,000 in year 2000 values). Although (said Sir FH Jeune P) (p.412) the ordinary rule would be to allow her a third of the joint income ‘no one would suggest’ an award of that size in this case. ‘It would [said the judge¹⁰⁷] clearly be too much’.

Hence, in high income cases, the notion that £3,000¹⁰⁸ was the maximum award ever to be made to a wife began to acquire some currency;¹⁰⁹ and the courts applied the practice of fixing a sum which appeared to be ‘adequate, having regard to the wife’s position in life and necessities’¹¹⁰—in effect, what judges towards the close of the twentieth century were describing as the wife’s reasonable¹¹¹ requirements.¹¹² At the other end of the social scale¹¹³ the application (p.413) of any rigid arithmetical proportion also increasingly seemed unrealistic.¹¹⁴ More generally, changing economic and fiscal circumstances made the approach of the courts in nineteenth and early twentieth century England seem increasingly irrelevant to conditions after the two World Wars;¹¹⁵ and from this (p.414) dissatisfaction of some of the judges and others professionally involved there emerged a principle originally formulated in the context of the court’s powers to require a settlement of an adulterous wife’s property or to vary settlements: the court should seek to put the parties in the financial position (or at least to preserve the living standards)¹¹⁶ which they would have enjoyed had the marriage not been dissolved.¹¹⁷ As Lord Merrivale put it:¹¹⁸

‘I conceive that I must take in to consideration the position in which the parties were, and the position in which the wife was entitled to expect herself to be and would have been, if her husband had properly discharged his marital obligation …’¹¹⁹

It is rather curious that, although the question of the grounds upon which a marriage could be dissolved were throughout most of the twentieth century highly controversial, for many years (and certainly throughout the first half of the twentieth century) there was very little public discussion of the financial consequences (p.415)of divorce.¹²⁰ It is true that after World War II the question whether a wife guilty of adultery¹²¹ should ever be entitled to financial support did arouse a certain amount of controversy,¹²² and it was sometimes said that the courts were over-reluctant to take a wife’s earnings (or, more frequently, her supposed earning capacity)¹²³ in to account in making the necessary adjustments; but broadly speaking none of the official bodies which examined divorce and its procedures before 1956 gave any extended consideration to the principles upon which ancillary relief was granted. Such discussion as there was focussed on the desirability of amplifying and rationalising the scope of the courts’ powers.¹²⁴

(p.416) The Morton Commission unwittingly opens Pandora’s Box

The 1956 Report of the Royal Commission on Marriage and Divorce was a conservative document; but one of its recommendations led albeit indirectly to a decisive change in the approach of the courts, the legislature and the community to divorce. The Commission recommended¹²⁵ that the court be given an unrestricted power to order either party to the marriage to make provision by way of capital payment to the other, and the Matrimonial Causes Act 1963¹²⁶ gave the court the power on or after¹²⁷ granting a decree (whether of divorce, nullity or judicial separation) to order payment of a lump sum, unrestricted in amount.¹²⁸ The long-term significance of this provision on perceptions of the nature of the divorce process is considerable: the courts and the legislature began to move away from thinking solely in terms of income maintenance,¹²⁹ and towards making provision by way of capital adjustment. Of course, changing economic conditions (notably high rates of income taxation combined with a benign fiscal regime in relation to ownership of capital, and the emergence of the first signs of the inflationary pressures which so dominated English society in the 1960s and 1970s) were important factors in creating a climate of opinion favourable to the creation of a power whose scope would have seemed remarkable to Victorian¹³⁰ and Edwardian judges and legislators.

The long-term impact of this extension of the court’s powers should not be understated. But initially the courts adopted a cautious and uncertain approach to the exercise of the newly acquired jurisdiction:

(p.417) In Davis v. Davis¹³¹ an actress—Dinah Sheridan, star of Genevieve and other now classic films—gave up her career at its peak to marry the exceedingly wealthy¹³² Chairman of the Rank Organisation.¹³³ After 11 years she petitioned for divorce on the ground of her husband’s cruelty. The petition was a ‘lengthy document setting out a number of grave allegations, some of them of an extremely unpleasant nature’;¹³⁴ but the husband¹³⁵ filed no answer and allowed the case to go undefended. The Registrar (taking a ‘reasonably lenient’ view of the wife’s admitted adultery which had apparently occurred only after the husband’s conduct had reduced her to a state of considerable depression) awarded her periodical payments of £8,500¹³⁶ (£85,000 in year 2000 values) and a lump sum payment of £10,000 (£100,000). Although satisfied with the periodical payments order¹³⁷ the wife appealed on the ground that the lump sum award was much too low, and that she was entitled to such a sum as would suffice to enable her to buy and furnish a house of a standard commensurate with the accommodation she had enjoyed during the marriage. Orr J increased the award to £15,000; and the Court of Appeal—noting that a wife’s standard of living was recognised by precedent¹³⁸ as a relevant factor—increased it further to £25,000 (a quarter of a million pounds in year 2000 values)¹³⁹ compared with the£30,000 which the wife had claimed). The wife’s need for suitably furnished (p.418) accommodation was the dominant factor¹⁴⁰ which weighed with the Court of Appeal: £15,000 would not ‘go very far towards purchasing house property in the sort of neighbourhood where a woman with this background can reasonably expect to live’; and accordingly the Appeal Court was ‘bound to interfere’. But the Court expressed the view that the question of making a lump sum order was not likely to arise ‘except in relatively rare cases’.

The statement that lump sum awards would only be made in ‘exceptional’¹⁴¹ circumstances was evidently intended merely to reflect the obvious truth that there is no point in making an order to hand over substantial capital unless the husband owns such capital;¹⁴² but although the courts did begin to show a willingness to exercise their lump sum powers in cases involving families of much smaller means in order to achieve specific objectives¹⁴³ for a decade the typical scenario continued to involve the very rich, as in the last case on the issue to come before the Court of Appeal prior to the enactment of the Divorce Reform Act in 1969:

In Brett v. Brett¹⁴⁴ the husband was an extremely wealthy businessman and underwriting member of Lloyds. He persistently failed to make proper disclosure about his finances, so that it was never clear exactly how wealthy he was. But the case proceeded on the basis that he might well have assets in this country worth half a million pounds (perhaps £5 million in modern values) as well as substantial assets in overseas tax-havens. Certainly in the course of the five and a half months for which the marriage lasted Mr and Mrs Brett lived lavishly, spending a honeymoon in Mexico and the West Indies and three holidays in Switzerland. The 23-year-old wife left the husband complaining of his revolting sexual demands and practices—allegations which he did not deny—and, having established that the case was one of exceptional hardship or exceptional depravity,¹⁴⁵ obtained the leave at that time necessary to present a cruelty petition (p.419) notwithstanding the fact that three years had not elapsed since the marriage. The husband’s conduct reduced the wife to a severe anxiety state, and (although she had qualified as a solicitor) she was at the time of the hearing unable to work; and would in any event not expect to earn more than about £1,250 a year.¹⁴⁶ She had virtually no capital. The Registrar awarded Mrs Brett a lump sum of £15,000 which, on appeal to the judge, was increased to £25,000. The Court of Appeal rejected the husband’s argument that £15,000 would suffice to provide the wife with appropriate housing, and made a lump sum award of £30,000¹⁴⁷ (£300,000 in year 2000 values) together¹⁴⁸ with periodical payments.¹⁴⁹ In reaching that decision, the Court of Appeal applied Lord Merrivale’s Ν ν. Ν principle, ie ‘the test of taking in to consideration the position in which the wife was entitled to expect herself to be, and would have been, if the husband had discharged his marital obligation, the marital obligation being, of course, an obligation to maintain her on the scale appropriate to his station in life’.¹⁵⁰ True it was that the marriage had only lasted a very short time, but, given that it was the husband’s conduct which had the effect of driving the wife out, this was not a factor on which the husband could rely.¹⁵¹

The Divorce Reform Act 1969 and the effect of divorce on the financial position of women

On one view, the Brett decision reflects a judicial perception of a husband’s obligation to keep his divorced wife supplied with ‘every conceivable luxury’;¹⁵² but it was the financial damage which divorce might cause to married women in general and ‘innocent’ wives in particular which had become an important factor in debates on the ground for divorce. The fact that divorce might deprive a woman of the pension expectations she would have enjoyed as the husband’s widow under the (at the time, increasingly common) Occupational Pension Schemes¹⁵³(p.420) was a particular grievance,¹⁵⁴ as were the restricted rights which a wife seemed to have in the family home.

The story of how the campaign for reform of the ground for divorce almost foundered in 1969 on opposition from those claiming that the proposed new law would be a ‘Casanova’s Charter’ enabling blameless wives to be repudiated by their husbands and left in penury has been told elsewhere in this book; and we have seen that the Government effectively bought off opposition by giving an undertaking¹⁵⁵ that the new law of divorce would not be brought in to force unless and until legislation had been brought in to deal comprehensively with the financial consequences of divorce. We have also seen how the amending legislation was a disappointment to those who sought far-reaching reform of the property rights of married women¹⁵⁶ but the Government decided to call an election, and the Matrimonial Proceedings and Property Bill was hurriedly pushed through the necessary parliamentary stages after only a truncated debate in the House of Commons on 27 May 1970.¹⁵⁷ In this way the issues which could well have proved troublesome were never fully discussed in Parliament.

Financial matters to be a matter of discretionary adjustment rather than entitlement

The Matrimonial Proceedings and Property Act effectively rejected the introduction of community of property between husband and wife in to English law. Instead, the court’s powers to make orders on divorce, judicial separation and nullity were extended and its discretion accordingly increased. The Act was (p.421) based on a Bill drafted in the Law Commission;¹⁵⁸ and the Commission’s recommendations on the court’s powers in divorce and other matrimonial proceedings¹⁵⁹ fell into two main groups.

First, the Commission recommended rationalising the powers of the court to make orders for financial provision: old fashioned terminology (such as ‘alimony’) should be modernised; and there should be no distinction between the powers of the courts in relation to husbands and wives or petitioners and respondents.¹⁶⁰ The Commission also recommended ‘some extension and a considerable rationalisation’¹⁶¹ of the court’s powers to adjust property entitlements: in addition to the power to order a lump sum payment the court should also have power to order settlements or transfers of property for the benefit of either spouse or any children.¹⁶²

Secondly, the Commission recommended¹⁶³ that statute provide ‘a uniform and more detailed set of guidelines to which the court should have regard’ in exercising its discretion to make financial orders on divorce than existed in the Matrimonial Causes Act 1965 (which in its turn incorporated legislation dating back to 1857). The Commission thought this to be ‘requisite especially having regard to the wider and more flexible powers which we have recommended in relation to property adjustments’; but with two exceptions the Report did not discuss the policy to which these guidelines were to give effect. These exceptions were (a) that the guidelines should include¹⁶⁴ a specific reference to the ‘extent to which each [spouse] has contributed to the welfare of the family, including not only contributions in money or money’s worth … but also the contributions made (normally by the wife) in looking after the home and family’;¹⁶⁵ and (b) the Commission gave it as its ‘considered opinion’ that the courts should be (p.422) readier than they had been in the past to make orders for the payment of a lump sum.¹⁶⁶

In one respect the Commission had to admit defeat: the Bill contained no provisions empowering the court to adjust the parties’ pension expectations. The Commission recorded that the ‘problem remains unsolved and, after full consideration, we believe it to be incapable of direct and complete solution’.¹⁶⁷

(1) The court’s powers¹⁶⁸

The Law Commission’s Report¹⁶⁹ had talked of ‘considerable rationalisation’; but it was soon evident that the powers to make financial provision¹⁷⁰ and property adjustment orders¹⁷¹ had been widened so as to allow the court to redistribute virtually all the parties’ economically valuable resources, whether capital or income, if it considered it appropriate to do so. The decision whether to take a restricted or broad view of how the powers should be exercised was one for the courts to determine in the exercise of the discretion which the Act conferred; and it would have been open to the courts to follow a policy similar (p.423) to that adopted between 1963 and 1970 in respect of the power to make orders for the payment of a lump sum, that is to say that reallocation of capital should only be ordered in exceptional circumstances.¹⁷² In fact (as we shall see) the courts soon decided to adopt a very broad approach in order to achieve whatever result it believed to be fair just and reasonable in the circumstances.¹⁷³

(2) Guidelines for the exercise of the court’s powers

The Law Commission’s 1980 discussion paper The Financial Consequences of Divorce: The Basic Policy²²⁹ was the first attempt by any official body in this country²³⁰ to analyse the principles upon which the financial consequences of divorce should be determined. In 1981 the Commission made recommendations²³¹ based on the response to the 1980 discussion paper. It appears that there had been a substantial consensus in favour of change; and the vast majority of those who had commented on the matter considered that the direction to ‘place the parties in the financial position in which they would have been if the marriage had not broken down’should be removed from the law as being undesirable even in the few cases in which it might be practicable of attainment. The Commission accepted the need to retain a wide discretion but favoured legislation indicating certain changes of emphasis in the way in which the courts exercised that discretion. Specifically, the law should emphasise as a priority the (p.434) necessity to make such financial provision as would safeguard the maintenance and welfare of the children;²³² greater weight should be given to a divorced wife’s earning capacity and to the desirability of both parties becoming self sufficient, and the courts should be more clearly directed to the desirability of promoting a smooth transition from the status of marriage to the status of independence and to the ultimate severance of financial obligations between the parties.²³³

Eventually, after lengthy parliamentary debate and enquiry,²³⁴ the Matrimonial and Family Proceedings Act 1984 gave effect to the Law Commission’s recommendations.²³⁵ The Act²³⁶ was not a fundamental restructuring of the law, and retained the requirement that the court considering making an ancillary relief order should consider all the circumstances, including a number of specified matters which required particular attention. It directed the court to give first consideration to the welfare while a minor of any child of the family. It contained provisions directing the court’s attention to the desirability of limited term periodical payments and once-for-all settlements in appropriate cases (the so-called ‘clean break’).²³⁷ It removed the direction requiring the court to seek to place the parties in the financial position they would have been in had the marriage continued without replacement.²³⁸ Detailed analyses of the law will be found in family law textbooks;²³⁹ but the following three general points are significant for the historical evolution of the law.

Law continues to be based on wide discretion

First, the law remains firmly based on a preference for discretion over formula and rule. It can be argued that the 1984 Act, by removing the direction to the courts to seek to place the parties in the financial position they would have been in had the marriage not broken down without substituting any alternative, has increased the ambit of the discretion. But, apparently, those administering the (p.435) law²⁴⁰ (an increasingly specialist practising profession and judiciary)²⁴¹ believed they had been able to use this statutory framework to develop principles on the basis of which²⁴² bespoke solutions to fit the infinite variety of individual cases and to do fairness between the parties were tailored.²⁴³ And according to the District Judges who deal with more than 85% of all the cases these principles were ‘well-known to family lawyers’ who could accordingly advise clients ‘in the confident knowledge that the litigation is likely to be disposed of fairly’.

There can be no dispute that the existence of a wide discretion has enabled the court to deal with cases against the background of changing social and economic facts (such as the inflation of house prices in the 1970s and 1980s, the emergence of negative equity in the late 1980s, the transformation of the United Kingdom from a country in which income taxes were amongst the highest in the world into one which ranks as a tax haven in respect of such taxes, and the consequences of membership of the European Union including such arcane matters as the effect of ‘milk quotas’ on a financial relief application).

Considerations of misconduct rarely relevant

Although the legislation²⁴⁴ directs the court to have regard (as one of the relevant circumstances) to the ‘conduct of each of the parties, if that conduct is such that it would … be inequitable to disregard it’ the courts seem still to discourage attempts to rely on allegations of misconduct.²⁴⁵ Equally clearly, there is some popular discontent about the way in which the courts and legal advisers have in this way given a restrictive interpretation to those provisions which direct the court. In 1996 backbench MPs forced onto an unwilling Government(p.436) an amendment of the law which was intended to give greater prominence to considerations of conduct; but that provision (along with the other provisions relating to divorce contained in that Act) has not been brought into force. It can be argued that the law as it is currently administered does not adequately reflect the community’s perceptions of what is fair and just.