Breakdown as the Ground for Divorce: The Divorce Reform Act 1969

Irretrievable Breakdown as the Ground for Divorce: The Divorce Reform Act 1969


The explanatory Memorandum to AP Herbert’s Bill had stated its purpose as being ‘to strengthen the institution of marriage and increase respect for the law’; and Herbert evidently believed that the Matrimonial Causes Act 1937 had worked well in practice. True, the divorce rate increased, but (as he wrote in 1945)1 ‘we have no statistics of the number of divorces which are followed by happy and fruitful second marriages’. But it was soon realised that the Act was not a panacea;2 and by 1945 Herbert was receiving ‘innumerable sad letters from citizens’ sseparated but still unable to divorce.3 For another quarter of a century the question whether the law should refuse to allow divorce save on the basis of proven matrimonial default remained highly controversial.

Some of the defects of the law can be illustrated from the author’s personal recollection:4

‘In 1953, during the school holidays, I attended a three day trial in open court at Manchester Assizes of a wife’s petition for the dissolution of her thirty year marriage on the ground of the adultery which (she alleged) the husband had committed with an unknown woman in one of the dark alleyways in that part of Manchester subsequently romanticised in the television soap, ‘Coronation Street’. Under intensive and skilled cross-examination the husband admitted most of the allegations made against him by the (p.320)private detective and other witnesses but denied that he had succeeded in having intercourse with the woman concerned. The judge directed himself on the serious nature of an allegation of adultery, held that the wife had not discharged the onus of proving beyond reasonable doubt that adultery had taken place and accordingly dismissed her petition. But that was not the end of the matter. The husband had retaliated by cross-petitioning on the ground of his wife’s cruelty; and the greater part of the hearing was devoted to a meticulous examination of his complaints. Again, most of the allegations of conjugal unkindness and other wifely failings were not denied, but the judge concluded that, as a matter of law, these incidents did not cross the dividing line between the ‘ordinary wear and tear of conjugal life’ on the one hand and cruelty in its legal sense on the other. Those whom the law had made one flesh were thus to remain legally yoked together; and the public interest in upholding the institution of marriage had been triumphantly asserted.’5

Such cases, in which both parties agreed that the marriage should be ended but were not prepared to allow the other a court-room victory, were both unusual and untypical. Far more common was the case where the ‘innocent’ party refused to take proceedings; and the fact that one spouse could both deny the other the liberty to remarry whilst still asserting (through the remedy of judicial separation)6 the right to enforce alimony payments was a source of considerable grievance, particularly to middle-class men.7 And it was not only adults who suffered. This was because the refusal of the innocent party to petition resulted (as the Law Commission was to put it in 1966) in a ‘large number of illicit unions which cannot be regularised and a still larger number of bastard children who cannot be legitimised’; but the law seemed indifferent to this. For example:

In Pigott v. Piggott8 a Roman Catholic wife refused to divorce the husband from whom she had been separated for 17 years. She applied for maintenance, but the trial judge made a much smaller order than would otherwise have been appropriate because he thought it wrong to keep in existence the legal shell of a marriage which had irretrievably broken down particularly since this meant that children born to the husband and his partner would be illegitimate. But the Court of Appeal held the judge had been wrong to take the fact that the wife (p.321)could have petitioned for divorce had she been so minded into account as a factor reducing the wife’s claim for financial support against the man who was still her husband.

‘Progressive opinion’ increasingly came to accept that while the 1937 Act had provided an ‘easy escape from the bond of matrimony for those … minded to take it’9 the time had come to provide for divorce in cases where the marriage had broken down completely, irrespective of whether or not a matrimonial offence had been committed and (if it had) by whom. But as one highly experienced divorce judge10 put it:

‘The history of divorce is one of conflict between those who believe that divorce is an evil thing, destructive of family life and accordingly of the life of the community—and those who take the ‘humanitarian’ view that when a marriage has irretrievably broken down it should be dissolved.’

Legislation would be necessary to give effect to the humanitarian view; and the Labour Government which took office in 1945 had (notwithstanding its large majority)11 not the slightest desire to get ‘embroiled’ at the beginning of its term of office in controversy about the ground for divorce—a topic which in no way concerned the distinctive outlook of the Labour party. The Government certainly had to deal with the threatened collapse of the court system under the pressure of the unprecedented number of divorce petitions;12 and so it had set(p.322) up the Denning Committee13 to examine the administration of the law of divorce’; but the Committee’s terms of reference were carefully drafted14 to exclude any consideration of the grounds for divorce from the Committee’s remit.15

The Denning Committee

The fact that the grounds for divorce were clearly off limits did not altogether inhibit the Committee from expressing its rather conservative views. The Denning Report expressed concern about the ‘deplorable increase’ in the number of divorces16 and took the opportunity to assert its belief that the preservation of the marriage tie was of the ‘highest importance in the interests of society’17 and that the ‘institution of marriage itself needs to be anchored by effective public opinion, sound moral teaching, and careful administration of the law’.18 It emphasised the importance of seeking reconciliation for estranged couples;19 and (accepting that the ‘basic causes of marriage failure were to be found in false ideas and unsound emotional attitudes developed before marriage, in youth and even in childhood’)20 favoured greatly extended facilities for education for marriage, parenthood, and family living.21

The narrow terms of reference could not however stop witnesses from volunteering ‘many suggestions’ for reforms in the substantive law to the Denning Committee; and in fact (rather than simply ignoring them) the Committee did (under the heading ‘Suggestions Received’)22 record23 that there appeared to be ‘a large number of cases where husband and wife have been separated for many (p.323) years and there is no possibility of their ever coming together again, but a divorce cannot be obtained because the separation was by mutual consent and did not amount to desertion’. And the Government’s reluctance to get embroiled in the controversy about changing the ground for divorce did nothing to inhibit people from joining lobbying groups or from writing to their MPs.24 Parliamentary pressure built up.

Parliamentary Pressure for Reform of the Ground Fordivorce 1949 Onwards

In 1949, the Labour MP Colonel Marcus Lipton25 put down an amendment to the Law Reform (Miscellaneous Provisions) Bill which would have added seven years’ separation to the grounds for divorce. 200 MPs signed a Motion in support.

After the February 1950 election 120 MPs asked the Government to consider the appointment of a Royal Commission to investigate the state of the marriage laws.26 The Government resisted;27 but pressure grew.28Within the governing (p.324) Labour Party29 there was a group of MPs committed to reform,30 and when in November 1950 the newly elected Labour MP Mrs Eirene White31 drew fifth place in the ballot for private member’s Bills32 she was persuaded to introduce a Matrimonial Causes Bill.

The 1951 Eirene White Bill: Breakdown of Marriage the New Principle

Mrs White’s Bill33 was avowedly intended ‘to deal with marriages in which the spouses have lived separately for seven years, but in which no hitherto recognised ground for divorce exists or in which one partner, having grounds for action, declines to take it and keeps the other partner tied against his or her will, generally for life’. Mrs White believed that to allow separation divorce was unlikely significantly to increase recourse to divorce, and made the point that the ‘passage of time also has the great advantage of being beyond the capricious, angry or spiteful control of the parties’.34 But she also recognised the strength of the view that the law failed to protect the large number of women35 who had no career except that of a housewife against the financial hardship which might flow from divorce.36

(p.325) Mrs White’s Bill invoked ‘a new principle, in that it looks to the breakdown of the marriage as the ground for divorce’37 (whilst not prejudicing the right of an injured party to seek divorce under the existing matrimonial offence provisions); and effect was to be given to this policy by simply adding seven years’ separation to the existing grounds for divorce and requiring the court to be satisfied that there was no reasonable prospect of cohabitation being resumed.38 But the Bill went further. In an attempt to ensure that a divorced wife should be no worse off (and might even be better off)39 financially as a result of divorce the court was to have power to withhold a decree unless satisfied that a petitioning husband had made adequate provision for his family’s maintenance.40

These contrasting provisions of the Bill encapsulated the main issues of the debate which was to take place about divorce for the next 20 years: few lay people41 were prepared to dissent (at least in public) from the principle that a marriage which had irretrievably broken down should be dissolved, but there was a great deal of concern about the damage (particularly the financial damage) which divorce might do to married women in general and ‘innocent’ wives in particular.

The Government’s difficulty

The Government was in a difficulty. The Lord Chancellor’s officials warned him that the Bill had a ‘good deal of support among all parties’.42 But another (p.326) general election could not be long away. Legislation, even by Private Member’s Bill,43 could have serious electoral implications for the Labour Party44 (and all the more so if the White Bill were amended to shorten the prescribed seven-year period of separation to five years or even two,45 or if the protection Mrs White’s Bill sought to provide for the ‘innocent’ were eroded). In the past, the Government had rejected calls for a Royal Commission to investigate the whole subject; but faced with a choice between a Commission and the possibility of immediate (and perhaps electorally damaging) legislation the Government did not hesitate for very long. It would try to get the White Bill thrown out (or withdrawn) by agreeing to set up a Royal Commission.46 In this way the Government would have bought time, even though it believed a Commission was unlikely to produce a unanimous report.47

In the Second Reading debate the Attorney-General, Sir Hartley Shawcross,48 tried desperately49 to persuade the Commons to accept the Government’s advice (p.327) not to attempt to deal ‘piecemeal’ with a single aspect of a very wide problem but rather to allow a Royal Commission to study and report on the ‘whole field’ of the marriage laws. On this occasion, however, his usually persuasive advocacy50 failed to convince. Mrs White and her friends refused to accept his plea not to take the Bill to a division because to do so would ‘inevitably gravely prejudice any subsequent inquiry by a Royal Commission’;51 and the Bill was given a Second Reading by 131 votes to 60.52 It is perhaps significant that a hundred more MPs were prepared to reveal their position to the public than had done so by voting on the Second Reading of the Herbert Bill in 1936 (when only 90 MPs voted).

The decision to establish a Royal Commission on Marriage and Divorce

In fact it was highly unlikely that the promoters could have got a Bill through all its stages in both Houses of Parliament in the six months (or less) which remained of the current Session;53 but by this time it only had a tiny majority in the Commons and did not want to have the anxiety of votes on a Divorce Bill raising passions and interfering with the legislative programme. For this reason (notwithstanding the Attorney’s threats54 that if the White Bill were taken to a division there would be no Royal Commission) the Government agreed to go ahead with the appointment of a Commission;55 and Mrs White withdrew her (p.328) Bill,56 agreeing (in public at least)57 that the complexity of the issues pointed to this approach to reform.58 Ministers and Officials settled down to the task of settling the Commission’s precise terms of reference and choosing its members.

The Royal Commission

Terms of reference

Agreeing the Royal Commission’s terms of reference proved to be comparatively straightforward. The Government had justified opposition to the White Bill by asserting the wide scope of the problems to which reform would give rise and their complexity; and so it was decided that the Commission’s investigations should not only cover divorce and matrimonial causes, the domestic jurisdiction of magistrates,59 and the law governing the prohibited degrees for marriage but also the law relating to property rights of husband and wife during marriage and after its termination ‘having in mind the need to promote and maintain healthy and happy married life and to safeguard the interests and well-being of children’.60 61

(p.329) Membership

The selection of Members was a much more difficult exercise. The task of chairing the Commission was first offered to the Tory aristocrat and educationalist Lord Eustace Percy.62 However, his enthusiastic letter of acceptance63 revealed that he held ‘the strictest views about the indissolubility of marriage and also about the evil of dissociating religious principle from the marriage law of England’. The Government had to extricate itself64 and find someone apparently more open-minded: eventually65 the name of Fergus Morton66 (an eminent Chancery Judge, appointed Lord of Appeal in Ordinary in 1947, and known to the Lord Chancellor’s Department for his ‘safe’ handling in the previous year of the Committee on the Law of Intestate Succession)67emerged instead.68

The selection of Members to serve on the Commission required a decision on an issue of principle: should they be seen as in some sense representative of particular interests (and here the claims of religious bodies were particularly strongly pressed)69 or should the Government try to appoint people with broad and open minds on the issue? The Attorney-General had told the House of Commons that he preferred the latter solution;70 and the Government favoured a balanced and impartial membership made up primarily of Ordinary men and women’.71But in practice this objective was easier to state than to achieve.

(p.330) The membership of the Commission was not finally announced for some six months.72 There can be no answer to the charge73 that in terms of social composition the Commissioners were overwhelmingly upper and middle class. Nor can it be denied that the legal profession was numerically over-represented.74 Nine of the nineteen signatories of the Commission’s Report were legally qualified,75 giving the clear impression that the Commission was to be concerned with a primarily legal, rather than a primarily social, issue. There was no representative of institutional religion; but equally there was nobody qualified to give any professional input from the social sciences. Six of the Report’s nineteen signatories were women.76

The Royal Commission at work

The Commission set to work in the then traditional manner. It invited submissions from interested bodies, received written submissions, invited some of (p.331) those who had written77 to give oral evidence,78 and made enquiries about the law and practice in the Commonwealth, the United States, and a number of European states.79 The Commission collected a considerable amount of statistical material about divorce rates, the number of divorce petitions and decrees, and so on.80

What did the Commission learn from the thousands of pages of written evidence and from the oral testimony given by 48 individual witnesses and the representatives of 67 organisations in the course of the Commission’s 102 meetings?81

The case for and against breakdown as the ground for divorce

On the main issue of the ground upon which divorce should be obtainable the battle lines were quite clearly drawn in the first two days of oral evidence. Mrs Eirene White82 made a powerful case for the principle of recognising the de facto breakdown of a marriage with no prospect of reconciliation as a sufficient ground for legal dissolution; but she was adamant that the economic sanctions against breaking up a home should be made more effective, that the court should have a discretion to refuse a divorce when there had been a failure to maintain, and that effective enforcement of maintenance obligations was the key to other reforms. As already noted, Professor LCB Gower83 greatly irritated some of the lawyer members of the Commission84 by his claim that many divorces (over half, he claimed, among the upper income groups) were collusive or based on bogus evidence. Gower said there was never any difficulty in getting a divorce if the parties were agreed; but this fact not only enabled one party to extort unduly favourable financial terms as the price of agreement but also often involved the parties in the degrading business of actual or pretended adultery (p.332) and always involved them deceiving the court. Gower accordingly favoured introducing divorce by consent (which would ‘merely allow the parties to do openly what they now do clandestinely’)85 and (in the absence of consent) divorce based on a period of separation.86

The submissions made the next day on behalf of the General Council of the Bar were in sharp contrast. To introduce divorce by consent or on the unilateral demand of one spouse would (said the Bar’s representatives) ‘strike a disastrous blow at family life … [and] basically alter’ attitudes towards marriage, whilst to accept the White Bill principle of breakdown would ‘dangerously undermine marriage and family life’.87 True, withholding divorce might lead to the formation of illicit unions, but that consideration was ‘heavily outweighed by the protection and reinforcement of marriage and the family provided by limited grounds for divorce and the principle that if husband or wife commits a matrimonial wrong and breaks up the marriage he or she does not thereby establish a vested right to his or her freedom’.88 ‘The Bar’s representatives claimed that it was their experience89 of great numbers of divorce suits which convinced them that for many marriage had become a temporary affair with no degree of permanency. The cure was to call a halt to easier, cheaper and quicker divorce. In the circumstances it was hardly necessary to wait for the Roman Catholic90 and Anglican churches91 to denounce proposals inevitably making divorce more (p.333) readily available, but the churches92 duly did so. At least no one claimed that the churches’93 opposition to change was motivated by financial self interest.

The rest of the evidence did not take matters much further. On the fundamental issue of the ground for divorce most of those who favoured significant change (as distinct from changes of detail on such matters as the definition of ‘incurable insanity’) would probably have accepted the position taken by the Haldane Society (of socialist lawyers):

‘The law cannot make people love one another, or make them live together if they do not do so of their own free will … It should be recognised that the law can only do the following things for [couples unable to achieve or maintain a good marriage]: (a) decide whether they should have the legal status of being married; (b) protect a party who does not desire cohabitation against the attentions of one who does; (c) make and enforce orders as to the custody of children; (d) make and enforce financial arrangements. There can be genuine disputes about (c) and (d), and such disputes can be fit subjects for decision by the court. In the case of (a) and (b), the function of the law should be mainly declaratory—to give public recognition to an already accomplished change in the private relations of the parties.’

In effect the Haldane Society accepted the functional notion of the divorce law first articulated in the Gorell Royal Commission 40 years previously.

Divorce by consent?

There was a significant division within the pro-reform group between (on the one hand) those who would take the ‘breakdown’ concept to its logical conclusion by allowing the parties themselves to decide that their marriage should be legally terminated, and those (on the other) who continued to regard consensual divorce as inherently objectionable. This latter group would only allow divorce if the breakdown were evidenced by some objective fact (most obviously a period of separation, but perhaps also the commission of one or other of the traditional matrimonial offences) or perhaps by a judicial inquiry.

(p.334) The Marriage Law Reform Society94 represents the first point of view. The Society’s lengthy95 and closely argued paper claimed that an ‘honest and rational divorce law’ would (despite a probable increase in the number of divorces) help morality and promote stability for the institutions of marriage and the family. In contrast, the existing law invited contempt and thus damaged those very institutions.96 The Society believed that the State should provide simple and quick relief where the purpose of marriage had been frustrated. Couples should not have to break the law and to practise deceit and subterfuge in order to get a divorce.97 The Society favoured not only divorce after a period of separation98 but (believing that if ‘two responsible persons together freely and knowledge-ably decide that their marriage is ended, the State should, subject to certain precautions,99 recognise this agreement’) advocated allowing divorce by consent.100 The Society realistically noted that suggestions for express legislative recognition of divorce by consent sometimes prompted ‘violent’ reaction; and felt it necessary to try and refute the argument that such a change would make English law comparable to that in force in the Soviet Union.101

The Divorce Law Reform Union in contrast rejected divorce by consent102 and generally put forward a much less radical case in a notably deferential (p.335) manner.103 It should be possible (after time for careful reflection) for the court to terminate104 marriages which existed in name only. For this purpose, uve years’ separation would be an adequate criterion.105 The Union emphasised its wholehearted support for procedures to encourage reconciliation and for the protection of divorced wives and their children. There are signs of some tension106 between the long established Union and the perhaps rather brash (and by this time much larger)107Marriage Law Reform Society.

The Morton Report: marital breakdown caused by failure to take ‘proper view of marriage obligations’

The Royal Commission deliberated for four years. Its Report, published on Tuesday 20 March 1956, was suffused by ‘grave anxiety’ about what the Commissioners believed to be the fact that marriages were breaking up which in the past would have held together.108 Some of the factors which had led to this ‘disturbing situation’ were (the Commission accepted) ‘in themselves socially desirable and, in their other aspects, of benefit to the community’.109 But the (p.336) root of the problem of increasing marriage breakdown was the tendency ‘more dangerous, because more insidious in its effects, than any of the others’110

‘to take the duties and responsibilities of marriage less seriously than formerly. Yet if, as we have said, more is now asked of marriage, it follows that more, not less, should be put into it. The result of this outlook is that there is less disposition to overcome difficulties and to put up with the rubs of daily life and, in consequence, there is an increasing disposition to regard divorce, not as the last resort, but as the obvious way out when things begin to go wrong. In other words, remedies which were intended for the relief of real hardship are used in cases where relief should be unnecessary if a proper view of their marriage obligations were taken by husband and wife’.

The cure: an increased sense of duty and obligation

What was to be done? Some of the Commissioners evidently believed that if the tendency to resort ‘too readily and too lightly to divorce’ were not checked it might ‘become necessary to consider whether the community as a whole would not be happier and more stable if it abolished divorce altogether and accepted the inevitable individual hardships that this would entail’.111 But the Report drew back from suggesting that divorce be made more difficult. Rather, the remedy lay

’… in fostering in the individual the will to do his duty by the community; in strengthening his resolution to make marriage a union for life; in inculcating a proper sense of his responsibility towards his children. These objectives can only be achieved by education in the widest sense, by specific instruction before marriage, and by providing facilities for guidance after marriage and for conciliation if breakdown threatens’.

Given this somewhat bleak and heavily ‘obligation’ focussed outlook, it is hardly surprising that the Commission did not look favourably on anything which could be seen as making divorce easier. Indeed, five112 of the Commissioners doubted whether the introduction in 1937 of divorce for desertion had been of benefit to the community.113 And the Commission was hopelessly (p.337) divided on the main issue of what it should recommend in relation to the ground for divorce.114 There were three different views.

A Commission divided

(1) Lord Walker’s views

Only one member of the Commission, the Scottish judge Lord Walker, was prepared to take his stand on the ground of principle that the law should allow the dissolution of marriages which had broken down, irrespective of the ‘guilt’ or ‘innocence’ of the petitioner; and that accordingly divorce should be available to a spouse who had lived apart from the other for at least three years and could establish that the facts and circumstances were such as to make it improbable that husband and wife would ever resume cohabitation.115

But Lord Walker’s position is often misunderstood. Far from being liberal or permissive he only supported abolition of the matrimonial-offence-based divorce law because he thought ‘lax interpretation’ had transformed it into a ‘technical cause of action without a real cause for complaint’. True, Lord Walker thought that breakdown should become the ground for divorce but he insisted that the court would need to be satisfied by proper evidence that the alleged breakdown was indeed irretrievable. He certainly did not favour a permissive approach to the granting of divorce:116 divorce by consent would ‘destroy the concept of marriage as a life-long union’;117 and if (contrary to his preference) the offence principle survived he insisted that the letter of the law be followed ‘as closely as may be’ and without the addition of any separation ground.

(p.338) (2) The hard-liners: divorce only as relief for a proven matrimonial offence

The remaining 18 Commissioners fell into two groups, each of nine people. First, there were those118 who simply rejected the introduction of the doctrine of breakdown of marriage in any form, and remained convinced that the matrimonial offence should remain ‘the determining principle of the divorce law’.119 True, there was an element of artificiality in supposing that all the right was on one side of the case and all the wrong on the other. But the offence doctrine none the less provided a ‘clear and intelligible principle’.120 The law helped men and women to strengthen their good impulses and weaken the bad,121 and people needed the ‘external buttress of a system of law’ which specified the circumstances in which an individual had the right to seek the dissolution of marriage. The fact that a husband or wife tempted to be unfaithful would never be certain that he or she would be able to marry the lover and have legitimate children was a ‘strong deterrent’ to setting up an illicit union.

For this group, to allow divorce by consent would be a change ‘disastrous to the nation’ encouraging people to ‘abandon their marriages on the flimsiest provocation’;122 whilst to allow divorce simply on the basis of a period of separation ‘would have even more damaging consequences for the institution of marriage … it would mean that either spouse would be free to terminate the marriage at pleasure … [and] people would enter marriage knowing that no matter what they did or how their partners felt, they could always get free’.123 For these nine members, the proper function of the law was to give relief where a wrong had been done, not to provide a dignified and honourable means of release from a broken marriage.124

(3) The ‘liberals’: divorce permissible after long separation in some circumstances

The second group of nine recognised that matrimonial offences were in many cases merely symptomatic of the breakdown of the marriage; and accepted the principle that the law should make provision for divorce in some circumstances of irretrievable breakdown even if there were no matrimonial offence.125 These nine Commissioners favoured allowing divorce when the fact of breakdown had been demonstrated by the spouses having lived apart for seven years or more. But five126 of this group would have refused divorce for separation if either party (p.339) objected;127 and even the four128 prepared to accept separation-divorce against the will of one spouse would have insisted on an applicant in such a case demonstrating that the separation was attributable to ‘unreasonable conduct of the other spouse’.

One thing is abundantly clear. Sir Hartley Shaw cross had been quite wrong to fear that a Commons vote in favour of the White Bill would in some way tie the hands of a Royal Commission. Far from feeling bound by the House of Commons vote for ‘breakdown’ divorce129 the Commission seems to have given it no weight whatsoever. Only four of the Commission’s 19 members were prepared to support the reform for which an impressive majority of the House of Commons had voted in March 1951. ‘Informed opinion’ had been decisively—almost offensively—rejected.

Reactions to the Morton Report

Reaction to the Royal Commission’s massive 405-page document with its 149 recommendations on detailed matters of law and practice130 was at first curiously muted. This may have been in part because those who had for so long campaigned for more liberal divorce did not quite know how to respond to the rejection of their case.131 Rather surprisingly, perhaps, the immediate response from within Whitehall seems to have been that the support of nine members for a proposal ‘somewhat on the lines of Mrs Eirene White’s Bill’ would ‘set off a strong demand for the adoption of a proposal of this kind’.132 The Conservative Government133 was sensitive to the charge134 that Royal Commissions were a ‘recognised and timely method of shelving inconvenient questions’ and decided that the Lord Chancellor135 should announce the Government’s intention to take ‘all possible steps by means of subordinate legislation, amendment of the (p.340) rules of court, administrative and Private Members’ Bills’136 to give effect to those recommendations of the Royal Commission which they accepted and which were susceptible to this treatment’.137 But there could be no prospect of finding time in the immediate future for Government sponsored primary legislation, even on widely supported recommendations (such as improved facilities for Marriage Guidance138 and the proposal that the court should not allow a decree nisi to be made absolute unless and until it was satisfied that proper arrangements had been made for the care and upbringing of children). As for the ground for divorce itself, in the light of the divergent views put forward in the Morton Report no one could ‘possibly expect’ any Government to introduce legislation permitting divorce (even by consent) after a separation of seven years.139 Any kind of official support for legislation permitting a ‘man who had gone off leaving a guiltless wife for seven years [to] come back and divorce her against her will’140seemed even less likely to be forthcoming.

The case against the Morton Report

The reformers may have been slow to voice their bitter disappointment at the Royal Commissions’s rejection of the case for major change in the ground for divorce but the publication in 1957 of Divorce in England, A Centenary Study by the distinguished social historian, Professor OR McGregor141 left no room (p.341) for doubt. McGregor’s brilliantly written text, supported by a wealth of statistical, demographic and historical material, claimed that the Morton Report ‘contributed nothing to … knowledge’, suggested that the Commission was ‘intellectually the worst’ and its Report the most ‘unreadable and confused’ Royal Commission report of the twentieth century. Professor McGregor concluded that the Report was no more than a ‘device for obfuscating a socially urgent but politically inconvenient issue’.

McGregor’s book has been influential in creating an enduring and strongly unfavourable perception of the Morton Commission. Criticism has focussed on three main issues.

(i) Failure to use statistical information

The first, and most powerful, criticism of the Morton Report142 was that the Commission did not obtain adequate statistical information, and that it made inadequate use of the information which it did collect.143 This criticism is not easy to refute. For example, the Commission seems to have made no attempt to quantify the number of what came to be called ‘stable illicit unions’ in spite of the fact that it had been uncertainty144 about the scale of this problem and about how far the law of divorce was responsible for the phenomenon which had powerfully influenced the decision to establish a Royal Commission. And yet it is by no means certain that such evidence would really have been material to the issue of principle facing the Commission. No one disputed that the denial of divorce caused hardship to many, but the question was how far that hardship had to be tolerated in the interest of preserving the principle that marriage is to be seen as a life-long relationship. In any event, the belief that evidence145 from (p.342) social scientists could (as McGregor claimed)146 really have provided ‘actual knowledge of the types of divorce law most likely to promote marital and familial stability’ may be met with a certain scepticism. For example, the most expert social scientists have been shown to be unreliable even in predicting the future extent of recourse to divorce. McGregor dismissed almost with contempt fears that 60,000-odd decrees absolute ‘would become the community’s normal divorce habit’; 40 years later as many as 140,000 divorce petitions each year had become the norm. Looking back from the year 2000 it can be seen that the earlier prophecies were indeed false, but only in under estimating the long term future trend in recourse to divorce.

(ii) Commission dominated by lawyers and lawyers’ concerns

Critics claimed that the Morton Commission was dominated by lawyers and their concerns. Even the terms of reference were couched in ‘legalistic terms’; and this was said to have led the Commissioners to adopt an approach based on legal procedures, and to give inadequate attention to family breakdown as a matter of social policy.147 The statistical over-representation of lawyers cannot be denied, and this no doubt is one of the factors which led critics148 to see a heavy bias ‘towards upper- and middle-class outlooks’ amongst the Commissioners.

(iii) Commission lacked vision

Finally, and most subjectively, critics claimed that the Commissioners lacked vision149 and failed to give the clear lead which was their responsibility on the major issues of controversy.150 The reader must decide whether Lord Morton’s riposte151 that the Commissioners were an ‘average cross-section of reasonably intelligent and hard-working people’ and that the division on the main issue of policy probably reflected public opinion is adequate. But it is certainly true that the Morton Commission’s concentration on the views of those involved in the legal system about its operation and impact, and the views of lawyers and others about the effects of the divorce law152 made it an easy target for hostile (p.343) criticism;153 and that this factor influenced future developments. In particular, the need for any inquiry into marriage and the family to have an input from the social sciences became part of the conventional wisdom.

The Impact of the Morton Report: No More Than a ‘Ripple on the Surface’ of the Tide154

In 1956 it must have appeared (as the Finer Report on one-parent families was to put it in 1974)155 that the ‘Morton Commission … had … put the quietus on divorce law reform for many years to come’;156 and Professor McGregor had in 1957 stated157 that it was a ‘safe prediction’ that divorce reform ‘would take a long, long time’. But within 15 years the Divorce Reform Act 1969 gave this country ‘the most radical measure in the history’ of English divorce law.158 In the context of reform of the ground for divorce, Finer could (with only a little exaggeration) describe the Morton Report as ‘little more than a ripple on the surface of a tide that was moving strongly in the other direction’.159 How did this remarkable transformation come about?

(p.344) Implementation of Morton’s ‘Legalistic’ Reforms Keeps the Issue of Reform on the Agenda

The Conservative governments which remained in office until 1964 never departed from the decision160 not to introduce legislation and not to support any Private Member’s Bill161 extending the grounds for divorce. But the Government did show itself ready and willing to take action on the Commission’s other recommendations. The Cabinet’s Home Affairs Committee set up a Committee of Civil Servants to ‘consider the extent to which effect could be given to the [Morton] recommendations by means short of Government legislation’. This Committee carried out a meticulous examination of what could and could not be done. The 35-page tabular analysis produced in June 1957162 showed that most of the Commission’s recommendations capable of being implemented by subordinate legislation or administrative measures (mostly, of course, matters of procedural detail)163 had already been acted on.

The Committee of Civil Servants also recorded that a significant number of Morton’s other recommendations would be suitable for Private Members’ Bills;164 (p.345) and over the next few years much detailed reform took place165 with the support of the Conservative Government.166

These detailed, and often technical, reforms can fairly be described as ‘legalistic’; and the Government certainly did not intend to give any encouragement to those seeking further reform of the ground for divorce. But by keeping the subject of matrimonial litigation on the legislative agenda, these measures kept the possibility of reform in the minds of civil servants, MPs and other informed and concerned people.

Lobbying and Parliamentary Action: The 1962 ABSE Bill

‘Keeping reform on the agenda’ was not of course enough for the many personally affected by the existing law and unable to take the dispassionate attitude (p.346) appropriate for officials advising Ministers. The lobbying groups167 continued their activities. But the decisive step was taken in November 1962 by the Labour MP and solicitor Leo Abse.168 He drew a favourable place in the Ballot for Private Member’s Bills and used the opportunity to introduce a Bill169 which would have added seven years’ separation to the grounds for divorce.170 Abse took advantage of the history of technical and legalistic reforms giving effect to Morton recommendations and skilfully presented his Bill (with all party support171 from MPs of (p.347) standing)172as being primarily concerned to give effect to Morton’s proposals for amending the law of condonation and collusion173 in order to foster reconciliation and minimise hostility. But there could be no disguising the fact that the Bill would have allowed separation divorce. Abse put the case in a moderate and rational way. By focussing on the hardship caused to children born illegitimate174 because their parents were unable to marry he was able claim that the Bill was not primarily ‘about divorce but about family’175 and above all about family stability.176 Abse’s speech was calculated to gain the sympathy of many committed to traditional family values; and he was also able to sow the seeds of doubt amongst the more sensitive opponents of separation divorce by claiming (in retrospect with justification) that if nothing were done to meet the plight of those whose legal marriages had long since ceased to exist in fact a far more radical measure would eventually get onto the statute book.177 In this way Abse was able to suggest that these considerations more than outweighed the fact that to allow a woman to be divorced against her will when she had committed no matrimonial offence would (p.348)be to make a ‘fundamental change in the whole of the English law of divorce’.178 His tactics appeared remarkably successful: only three MPs179 spoke against the Bill on the floor of the House of Commons.

But appearances were deceptive. Opposition was being skilfully organised behind the scenes by the Archbishop of Canterbury’s Lay Secretary,180 Robert Beloe (one of the ‘hardline’ members of the Morton Commission who had rejected any compromise on the introduction of ‘breakdown’ as a ground for divorce). MPs opposed to separation divorce let it be known that any Bill containing such a provision would be ‘talked out’.181 Faced with this ‘formidable opposition’182 Abse withdrew the clause adding separation to the grounds for divorce in exchange for an agreement183 that the other provisions in the Bill184 would reach the statute book.185

(p.349) In the House of Lords Lord Silkin and others tried to reintroduce the separation divorce provision,186but Lady Summerskill187 passionately and effectively advanced the case (founded primarily on fears of financial hardship to women) against what she described as ‘the compulsion clause’. Once more the Church of England was active both in the debate188 and behind the scenes;189 and Lord Silkin’s amendment was defeated on a division.190

Losing a battle, but winning the war?

In a bitter speech Abse had expressed his anger at having no alternative but to ‘yield to duress’191 and drop the separation divorce provision from the Bill. Yet, with the benefit of hindsight, it can be seen that his Bill directly paved the way for the Divorce Reform Act 1969. ‘Technicalities’ they may have been, but the changes introduced by the 1963 Act made the notion of divorce as a remedy given only to an innocent victim seem increasingly remote from reality. There were two particularly significant provisions.

(p.350) First, the law of condonation was (as a majority of the Morton Commission had recommended)192amended to allow couples to resume cohabitation with a view to reconciliation for one period of up to three months without this constituting condonation.193 Secondly, and contrary to the recommendation of the Morton Commission,194 collusion was made into a discretionary (rather than an absolute bar) to divorce.195 Each of these provisions caused difficulty both as the Bill passed through Parliament196 and subsequently in the(p.351) courts.197 But it does seem that the conversion of collusion into a discretionary rather than an absolute bar to divorce was particularly influential (as the authors of the authoritative practitioners’ textbook on divorce law198 and practice put it) in leading to a ‘consensual approach to divorce being implemented, since parties could for the first time openly bargain about the grounds of their divorce and the consequent financial arrangements’.199 In this way apparently technical changes in the law played their part in creating a climate of opinion in which only a few years later legislation allowing divorce for irretrievable breakdown (effectively200including divorce by consent) and consigning the doctrines of condonation and collusion to the history books seemed to command general support.201

(p.352) Changes in judicial policy

Judicial decisions in the 1960s reflected (but may also have contributed to the creation of) an attitude favourable to changing the basis of the ground for divorce. Two developments were particularly significant.

First, decisions of the House of Lords in 1964 allowed the courts to grant decrees on the ground of cruelty against a respondent who was in no way morally blameworthy.202 Increasingly the question became simply whether the factual situation was such that the petitioner could not be expected to tolerate;203 and this question could easily be paraphrased in terms of whether the marriage had in fact broken down.

Secondly, (as we have seen) the courts’ attitude to the exercise of the discretion to withhold a decree had changed dramatically over the years. At the beginning of the century the fact that both parties had established stable adulterous relationships with others would have certainly led to a decree being refused, and after World War I men were habitually ‘refused discretion on account of a single weekend at an hotel after the wife had long deserted them’.204 But after the House of Lords 1943 decision in Blunt v. Blunt205 it became increasingly accepted that no public interest was served by keeping legally in existence a marriage which had in fact broken down.206

The effect of these changes should not be exaggerated. The fact that the petitioner had committed adultery remained a bar to divorce, and a petitioner still had to file a discretion statement in support of an application for the exercise of the court’s discretion. Even in the year in which the Divorce Reform Act was passed, a respected divorce judge207 found it necessary to reiterate that solicitors had a duty to ensure that their clients understood both the meaning of the word (p.353) adultery208 and the absolute obligation to disclose adultery on their part at any stage of the proceedings. The courts apparently expected solicitors to repeat their explanation at each important stage in the proceedings (although it was conceded that ‘with a sufficiently well educated and well informed client’ it might be sufficient ‘for the solicitor to say at the outset, having asked the question “Have you committed adultery?” to say “Be sure that if ever you do so between now and the time when the suit comes to be heard, let me know because the court will have to be informed”’.209 No doubt many clients were bemused by the requirement to provide what the Finer Report described as a ‘sexual autobiography’;210 but solicitors found the burden placed on them distasteful.211 Amongst those professionally involved the social utility of the offence based divorce law came increasingly to be questioned.

Ministers and officials

It was not only in the legal profession that traditional attitudes were changing. Lord Chancellor Dilhorne might speak out in public against the Abse Bill, but his attitude in private was very different.212 Moreover, the Conservative Party (p.354) was well aware of the need to modernise its ‘grouse moor’ image;213 and doctrinal opposition to reform of the divorce law was no longer necessarily to be expected from Conservative politicians.214 From a somewhat different perspective, the officials who advised Ministers seem increasingly to have favoured moves towards the substitution of breakdown for the matrimonial offence doctrine.215 But—given the traditional and persistent opposition of the Church of England to divorce reform—nobody could have predicted that it would be a Committee established by the Archbishop of Canterbury216 which would take the lead in the events which led to radical reform and that a major part in the negotiations would be played by the Archbishop’s Lay Secretary217 (a man with an established record of opposition to reform of the ground for divorce).

The man and woman in the street

The machinations of highly placed individuals within the Government and Ecclesiastical establishment were of great importance, but no reform on so contentious an issue could be carried through without support from a significant body of public opinion. Leo Abse had ensured that the public were well aware of his attempts to achieve reform.218 After the reverse in 1963, other committed reformers continued to keep divorce reform in the public eye; and in three (p.355) successive Parliamentary sessions the Labour MP John Parker219 brought Bills220 to allow divorce after five years’ separation into Parliament. Opinion Polls221 indicated that a majority of the population supported divorce founded on separation.

The Archbishop’s Group: ‘Putting Asunder’

In May 1963 the Archbishop’s Lay Secretary, Robert Beloe met senior officials222 from the Home Office and Lord Chancellor’s Department. He floated the notion that the Archbishop might set on foot an investigation into marriage and its dissolution. The suggestion that the Archbishop’s mediation might be aimed at the possibility of ‘substituting for all other grounds the ground that a marriage had come to an end’ emerged.223 Then the Archbishop (using deliberately low key language)224 announced in the course of his House of Lords speech strongly attacking the Abse separation proposal that he had asked ‘some fellow churchmen’ to seek to find a ‘principle at law of breakdown of marriage … free from any trace of the idea of consent, which conserved the point that offences (p.356) and not only wishes are the basis of breakdown, and which was protected by a far more thorough insistence on reconciliation procedure first’.

No one hearing these tentative words would have anticipated that this initiative would be particularly significant; but in fact the appointment of what came to be called the ‘Archbishop’s Group’ proved to be of decisive importance. The Group (albeit chaired by the Bishop of Exeter, Robert Mortimer)225 was very different from the ‘group of churchmen’ Ramsey had envisaged.226 This was largely because both the Home Secretary227 and the Lord Chancellor228 took an active part229 in choosing who should (and who should not)230 be asked to serve;231 and the selection process came to resemble that traditionally conducted in Whitehall trawls of the ‘great and the good’. The criticism of the lack of social science expertise in the Morton Commission made it seem imperative that a ‘sociologist’ be a member of the Archbishop’s Group; and ‘slots’ were also allocated to particular professions (for example, child psychiatry) and interests (for example, marriage guidance). Again, the Group’s Terms of Reference232 were (p.357) only settled after lengthy discussion with the Lord Chancellor’s Department, the Home Office and others in Whitehall.

The Archbishop’s Group held its first meeting on 26 May 1964; and a consensus233 in favour of substituting irretrievable breakdown as the sole ground for divorce soon emerged. The court should have power to dissolve marriage if ‘having regard to the interests of society as well as of those immediately affected by its decision, it judged it wrong to maintain the legal existence of a relationship that was beyond all probability of existing again in fact’.234 This would involve the court giving a judgment on the state of the marriage; and its decree would no longer be ‘against’ the respondent but rather ‘against’ further legal recognition of the marriage.235

The Group remained adamantly opposed to divorce by consent on the ground that it would reduce marriage to a purely private contract and ignore the interest of the community—a ‘grave, indeed overwhelming objection’.236Hence, it was to be for the court, representing the community, to decide whether the marriage had really broken down irretrievably;237 and, although the agreement of the parties in wanting a divorce would not be a bar (and might even count in favour of granting a decree) in no case was it to be sufficient.238 It was, for the Archbishop’s Group, essential that the court should always examine239 the issue of breakdown according to the evidence.240The Group insisted that its recommendation for amendment of the substantive law was conditional upon procedural changes to enable the court to conduct the necessary inquest241 into the alleged fact and causes of the death of the marriage relationship and to ‘get to (p.358) grips with the realities of the matrimonial relationship’ instead of having to ‘concentrate on superficialities’ (as happened under the offence based law).242

The Group refused to accept that any of the well rehearsed objections to the breakdown principle outweighed its advantages. No doubt (the Group accepted)243 critics would point to the economic deprivation caused by divorce; but the solution to that lay primarily in reforms of the law of property, pensions (a topic much discussed) and insurance. But the Group did not see it as part of its remit to prescribe detailed remedies for these problems.

What of the objection that breakdown divorce would allow the guilty to take advantage of their own wrong? The Group thought that the court’s judgment could and should be seen as the recognition of a state of affairs and a consequent redefinition of status (rather than as a verdict of guilty after a law suit) and for that reason the maxim would have no general application.244 But even so, the Group accepted245 the need for a safeguard: there should be an absolute bar on divorce if on the facts of any particular case considerations of fundamental importance (such as the public interest in justice and in protecting the institution of marriage) outweighed the case for dissolution.246

On one matter in particular the Group was adamant: the doctrine of breakdown was to replace divorce founded on the matrimonial offence. On no account should breakdown be introduced as an additional ground247 grafted onto the existing law.248 Indeed, the Group thought that rather than ‘to inject into [the offence based law] a small but virulent dose of incompatible principle’249 it would be better to keep the law based firmly on the matrimonial offence and to consider how the administration250 of the law could be improved.

(p.359) All these points were incorporated into the Group’s Report, Putting Asunder, eventually published (to the accompaniment of much, generally favourable,251 radio television and press publicity)252 on 29 July 1966.

The Law Commission and its ‘Purely Legal’ Advice

The ‘swinging sixties’ are commonly believed to have been a time of great change in social and political attitudes; and certainly the Labour Government which took office in October 1964 (some five months after the appointment of the Archbishop’s Group, but before the publication of Putting Asunder) was publicly committed to a programme of energetic social and economic reform. The ‘white heat’ of the scientific revolution (to use a phrase coined by the incoming Prime Minister Harold Wilson)253 was to be applied to modernising the country and its institutions. The damage done by ‘thirteen wasted years’ of amateurish Tory misrule was to be reversed by skilled professionalism.

The legal system had been singled out as being particularly in need of radical reform.254 This was to be carried out through the agency of the Law Commission, one of the new government’s first creations,255 committed by statute256 to the systematic development, reform, simplification and modernisation of the law. Not surprisingly, family law immediately attracted the newly created Commission’s attention;257 and the Commissioners established a close relationship with the Archbishop’s Group. The Commission had advance(p.360) knowledge of what Putting Asunder was going to say; and seems deliberately to have fanned expectations that the Archbishop’s Group’s Report would provide the catalysis for divorce reform.258 As soon as Putting Asunder was published, Lord Chancellor Gardiner,259 a committed advocate of divorce reform, formally referred the document to the Commission for its advice.260 In this way, what had originally been intended by the Church as a low-key contribution to the debate (probably not even to be published)261 was moved to the centre of the stage; and it was the Church which for the first time was made to appear to be advocating a reform it had traditionally opposed.

Three months later,262 on 9 November 1966, the Law Commission’s Advice to the Government was published under the title Reform of the Grounds of Divorce, The Field of Choice.263 The Commissioners (of whom a clear majority (p.361) were already publicly identified as supporters of reform)264 had decided265 that the ‘form of the [Report] would be factual and not recommendatory, excluding value judgments in so far as that was possible’. Accordingly The Field of Choice purported to have a narrow objective:

‘It is not [said the Commission] … for us but for Parliament to settle such controversial social issues as the advisability of extending the present grounds of divorce. Our function in advising … must be to assist the Legislature and the general public in considering these question by pointing out the implications of various possible courses of action. Perhaps the most useful service that we can perform at this stage is to mark out the boundaries of the field of choice … We have … tried to restrict this Report to a consideration of what appears from a lawyer’s point of view to be practicable ….’266

‘Purely practical difficulties’ compel rejection of Putting Asunder’

The Commission’s Press Release was even more modest: the Commission was a ‘purely legal body’; and it had therefore considered the Archbishop’s Group’s proposals solely ‘from the point of view of what would be feasible as a matter of legal administration’.267 This approach led The Field of Choice to reject268 the Putting Asunderproposal for ‘breakdown with inquest’ (notwithstanding its ‘undoubted attractions and [the Commission’s ] sympathy with the principles’ underlying the Archbishop’s Group’s Report). ‘Purely practical difficulties’ in making the scheme work269 ‘forced’ the Commission to this conclusion.

(p.362) What, then did the Commission propose as an alternative? The Field of Choice suggested that two alternatives270 would ‘be practicable’.271 The first was described as ‘breakdown without inquest’. Instead of the court being required to carry out a detailed examination of the alleged fact and causes of the breakdown (a process necessarily ‘elaborate, time-consuming and expensive’)272 there would be ‘an easier procedure’. On proof of a period of separation the court would (in the absence of evidence to the contrary) presume that the marriage had broken down. This, so the Commission claimed, would ‘give effect to the … principles’273underlying the Putting Asunder approach.274 But the Commission asserted that this form of ‘breakdown without inquest’ would not be ‘feasible’ if the requisite period of separation were significantly longer than six months.275 If the stipulated period were longer, ‘intolerable hardship’ would, in the Commission’s view, be caused to innocent parties currently able to obtain an offence-founded divorce on the grounds of the other’s Outrageous conduct’.276

If (said the Commission) so short a period were not acceptable, breakdown (even breakdown without inquest) could not be accepted as the sole ground for divorce. The Commission therefore put forward its second alternative: the ‘separation ground’. But because the stipulated period of separation would necessarily277 be ‘substantially longer’ than six months the ‘separation ground’ ‘would be practicable only as an addition to the existing grounds based on matrimonial offence’.278

(p.363) An unbridgeable gulf between Law Commission and Archbishop’s Group?

The Field of Choice might thus have seemed distinctly unhelpful in building a consensus. The Law Commissioners must have known that the Archbishop’s Group would never accept six months’s eparation as in effect the sole ground for divorce whilst Putting Asunder had made it abundantly clear that the Group would have preferred to ‘keep the law firmly based on the matrimonial offence’279 rather than accept the introduction of breakdown as an addition to the grounds for divorce (instead of a substitute for it). And yet when, two weeks after publication of The Field of Choice, the House of Lords debated the issue of divorce reform only two or three speakers opposed the principle of reform.280 Reviewing The Field of Choice in the Modern Law Review281 Professor Otto Kahn-Freund was to say that all that could be said on the subject of divorce reform had been said, and that the time for action had arrived. A similar impatience was expressed in the House of Lords by the former Lord Chancellor (and opponent of the Abse 1963 Bill)282 Lord Dilhorne:283 there was (he said) general agreement about the serious defects of the existing law; and Dilhorne urged that rather than quarrelling about who was right and who wrong a serious attempt should be made to find ways of making the breakdown principle work satisfactorily.

Creating a consensus

There seems to have been general sympathy for Dilhorne’s robust approach; and the Bishop of Exeter was able to oblige. At the end of the debate284 he revealed that he had arranged to meet the Law Commission285 the following day; and he was personally ‘quite convinced’ that the gap between divorce with inquest and divorce without inquest was not wide ‘and that in fact we could come to an agreement about a practicable method of working a divorce law which was based wholly on the principle of the breakdown of marriage’. Over the next six months negotiations took place between the two groups.286

(p.364) The concordat between the Law Commission and the Archbishop’s Group

Eventually287 the terms of a ‘concordat’288 between the Archbishop’s Group and the Law Commission were finalised and published.289 The concordat reiterated that irretrievable ‘breakdown should replace matrimonial offence and become the sole and comprehensive ground of divorce’. But in place of the detailed inquest proposed in Putting Asunder the court was (in the absence of evidence to the contrary) to infer breakdown On proof of the existence of certain matrimonial situations’, ie that the parties had lived apart (for two years if the respondent consented to divorce or for five years if there were no consent) or one of several other specified facts akin to the traditional matrimonial offences.

This was all the reformers could have wished. The concordat was favourably received in the Press. On 12 October the Cabinet290 accepted Gardiner’s advice291 that a Bill to give effect to the concordat should be drafted by Parliamentary Counsel in the Law Commission and handed to a Private Member.292 The Law Commission settled293 Instructions to Parliamentary Counsel.294 On 9 November Mr William Wilson MP295drew fourth place in the Ballot for Private Members’ Bills, and agreed to take up the Bill. On 29 November the House of Commons ordered the Divorce Reform Bill presented (p.365) by Mr Wilson296 to be printed.297With one exception, all concerned with Putting Asunder seem to have been content with the outcome of their efforts.

The Archbishop dissents

That one exception was significant. It may have been reasonable to suppose that an agreement between the Law Commission and ‘the Archbishop’s Group’ meant that the Archbishop himself accepted the ‘concordat’. TheDaily Mirror went so far as to claim that ‘the pacemaking Archbishop’ had been converted into a ‘powerful ally’ of Leo Abse and his fellow campaigners. But in fact Ramsey had consistently distanced himself from the concordat,298 and refused even to have the document embodying the concordat formally submitted to him;299whilst the Law Commission was firmly told by Beloe that the Archbishop had not given his approval to the concordat and that if the Commission were asked whether the Archbishop approved and agreed with it ‘the answer should be that he did not agree with everything in it’. Ramsey evidently understood that the concordat departed in important respects from what Putting Asunder had proposed; and he wanted (as Beloe recorded) to be ‘free to (p.366) criticise and seek for amendment of some of the propositions’ in the concordat.300 In particular, Ramsey had always insisted that it was ‘of the utmost importance that breakdown should be not an additional ground but a substitute for all existing grounds’.301

Was that what the concordat provided, or did it rather use the language of breakdown merely to disguise the addition of separation to the existing grounds for divorce?302

Giving effect to the ‘consensus’: the draftsman’s role

The precise terms chosen to translate the general policy expressed in the concordat into language which the courts would interpret were thus of great importance. The draftsman of the Law Commission’s Bill303 had to give effect to instructions that ‘divorce should be available upon proof that the marriage [has] irretrievably broken down, and upon no other ground’; but also that ‘no marriage should be treated as having broken down irretrievably unless the court was satisfied’ that (for example) the respondent had committed adultery and the petitioner found it intolerable to continue or resume cohabitation or that the ‘parties to the marriage had lived apart for a continuous period of at least five years’. The dual requirement was necessary to satisfy the members of the Archbishop’s Group that the Bill would not simply add the ‘separation ground’ to variations of the existing matrimonial offence, but rather that the court would have to be satisfied, as a separate matter, that the marriage had truly broken down irretrievably and all possibilities of reconciliation explored.

It was clear enough from this that there could be no divorce in the absence of proof of one of the specified facts (however plain it was that the marriage had (p.367) broken down); but what was to happen in the converse situation where there was proof of a fact but possibly some doubt whether the breakdown was truly irretrievable? The terms of the concordat, quoted above, gave no answer. But the draftsman (acting on the instructions of the Law Commission) supplied one. True it is that the Bill304 (and the Act)305 began with the resounding statement that ‘the sole ground on which a petition for divorce may be presented to the court by either party to the marriage shall be that the marriage has broken down irretrievably’; and the Bill provided that the court was not to hold that a marriage had so broken down unless the petitioner satisfied the court of one of the specified facts.306 But the Bill (unlike the concordat) went on to provide an answer to what was to happen in the converse situation: once a ‘fact’ has been proved, the court ‘shall307… grant a decree’ unless it is ‘satisfied on all the evidence that the marriage has not broken down irretrievably’. In other words, the court faced, for example, with proof of the adultery ‘fact’ or the ‘fact’ that the parties had lived apart for five years would be bound to dissolve the marriage unless the respondent could discharge the almost impossible task of satisfying the court that the marriage had not broken down. As the President of the Probate Divorce and Admiralty Division308 was to put it:

‘If even one of the parties adamantly refuses to consider living with the other again, the court is in no position to gainsay him or her. The court cannot say, “I have seen your wife in the witness-box. She wants your marriage to continue. She seems a most charming and blameless person. I cannot believe that the marriage has really broken down”. The husband has only to reply, “I’ m very sorry; it’s not what youthink about her that matters, it’s what I think. I am not prepared to live with her any more”. He may add for good measure, “What is more, there is another person with whom I prefer to live”. The court may think that the husband is behaving wrongly and unreasonably; but how is it to hold that the marriage has not nevertheless irretrievably broken down?’

Not surprisingly, there has been no reported instance of a respondent succeeding in rebutting the presumption that proof of one of the ‘facts’ establishes breakdown.309 Mortimer’s assumption that the evidence of breakdown would be rebuttable rather than conclusive310 has thus been falsified. The draftsman’s choice of the one word ‘shall’ inevitably meant that the effective ground for divorce under the 1969 Act was not breakdown at all. Rather the effective ground for divorce became either separation for the prescribed period or the commission of any of the three matrimonial offences, adultery, behaviour, or (p.368) desertion.311Anderson’s prophesy312 that ‘we might get a law which accepts a breakdown of marriage as a fundamental ground, but which accepts the matrimonial offence so blindly as prima facie evidence of divorce that in effect we are having the matrimonial offence plus separation’ was fulfilled, not (as Anderson had feared) by legislation deliberately ignoring the Putting Asunder principle, but by legislation purporting to be based upon it, following the concordat which Anderson had helped to negotiate. The truth is that the apparent consensus between the Group and the Law Commission was vitiated by a skilful piece of legislative legerdemain.313

Mortimer (the Chairman of the Archbishop’s Group) evidently continued to believe that ‘the great merit of [the Bill supposedly giving effect to the concordat] lies in its first clause’ which (he claimed) clearly established the principle that the true ground for divorce is the breakdown of marriage.314 But a different parliamentary draftsman was soon brutally to demonstrate the reality. The consolidating Matrimonial Causes Act 1973removed the ringing assertion to which Mortimer referred (presumably on the ground that it had no legal function) and substituted the provision that a divorce petition may be presented ‘on the ground that the marriage has broken down irretrievably’.

The Church group was warned how the Bill would be interpreted by the courts:315 but it appears that people were becoming bored with these niceties.316 Perhaps readers will have some sympathy with the impatience expressed by Lord Dilhorne and others; but the need for the Law Commission’s Bill to appear to give effect to the principle that irretrievable breakdown should be the sole (p.369) ground for divorce (as so eloquently advocated in Putting Asunder) whilst in truth doing no more than adding divorce for separation may have played some part in making the law ‘confusing and misleading’317 and indeed impossible for most lay people to understand. As the Law Commission put it when it returned to reform of the Ground for Divorce in 1990318 this could ‘only lead to … lack of respect for the law’ and indeed that some might regard what had been done as ‘downright dishonest’. This was hardly realised in the parliamentary debates, which focussed on issues less abstract than the philosophical basis of the ground for divorce. But a price had been paid319 to get the support of one particularly important interest group.

Getting the Bill on to the Statute Book: The Government’s Role

No Bill dealing with the ground for divorce has ever had an uneventful passage through Parliament,320 and what became the Divorce Reform Act 1969 was no exception. The Bill introduced in 1967 by William Wilson was given a Second Reading by 159 votes to 63 on 9 February 1967; and was debated for nearly 40 hours in Standing Committee; but it was impossible to make time for it to get through all its stages in the House of Lords.321 So it was necessary to start again in the following (1968/1969) Session; and another MP (Mr Alec Jones) who had drawn a reasonably favourable place in the ballot for Private Members’ Bills agreed to sponsor what was in substance the Bill introduced the previous session.322 The Government had again agreed323 to consider making Government time available for the Bill ‘in the light of the degree of support shown for it on Second Reading’; and the substantial vote in favour of a second reading on the Wilson Bill in the previous Session evidently tipped the scales. The Government (p.370) did eventually324 agree to make time available for the Jones Bill. Given the size of the pro-reform majority in both Houses of Parliament325 and the skilled and effective management of the Bill by Abse and his supporters326 this decision can in retrospect be seen to have made it almost certain327 that the Divorce Reform Bill would become law. Opponents of reform bitterly criticised the decision,328 but the Government stood firm. Even so, there were anxious moments.

Overcoming the opposition

Opposition329 to the divorce reform legislation was of three main types. First, there was (as there always had been) opposition of principle to any extension (p.371) of the grounds for divorce.330 But the Church of England331 had effectively been bought off by the promise that what was being offered was divorce for irretrievable breakdown, and the Free Churches332 took the same favourable position. Even the Mothers’ Union333 did not object to the principle of divorce for irretrievable breakdown.334 Only the Roman Catholics refused to budge335 from the stand they had taken in the 1950s336 (and indeed the 1850s): a marriage contract was governed by the law of God which no civil law could change.337

Secondly, there was opposition to the Bill based on the financial injustice which would be caused to innocent women divorced against their will; and it was opposition of this kind which at one time threatened the Bill338and did lead to its implementation being deferred until legislation dealing with the financial consequences of divorce had been enacted. This is dealt with below.339

(p.372) The third type of opposition related to the details of the legislation. Some of the proposals were for largely technical amendments340 of the kind virtually always found necessary. At the opposite extreme there were proposals clearly designed to destroy the Bill (for example, an amendment which would have restricted the legislation to marriages contracted after its enactment341 and another amendment which would enable couples to opt for an indissoluble form of marriage).342 These had to be (and were) defeated. More successful343 were attempts to change the emphasis of the Law Commission’s draft Bill, for example by requiring positive consent to be given to a divorce founded on two years’ separation (rather than the mere failure to object which would have sufficed under the Law Commission’s draft Bill).344

Opposition based primarily on financial detriment to women: Bill a Casanova’s Charter?

Opponents345 of reform knew that a majority of the population seemed to support divorce founded on separation;346 and for this reason they concentrated their fire on the financial consequences of divorce for the economically vulnerable, and especially the ‘innocents’ who were likely to suffer financially.347 Groups such as the National Council of Women of Great Britain expressly made support for breakdown divorce conditional on ‘sufficient financial safeguards’ being ‘simultaneously introduced within the new … Divorce Law (p.373)itself’.348 This view, which can be crudely but effectively caricatured as being that the Law Commission’s Bill would constitute a Casanova’s Charter,349 caused the Government and the Bill’s sponsors350 serious embarrassment;351 but once again the Law Commission was on hand to produce palliative amendments and reassuring but (it has to be said) not always entirely candid352 (p.374) assurances about the scope and effect of the financial provisions which were to be introduced at the same time as the alteration in the ground for divorce took effect. These new provisions (outlined elsewhere in this book)353 did give the Divorce Court a broad discretion to make financial orders on divorce; but the problem of securing the wife a share in the husband’s pension fund (the topic at the forefront of the concerns of those doubtful about reform) was not to be comprehensively tackled until the last year of the twentieth century,354 whilst the divorced woman’s claim for definite and ascertainable property rights rather than the mere possibility of receiving discretionary benefits has to this day never been conceded.355 The promoters of the Bill gave assurances356 that re-drafting of the provision requiring the court to refuse a decree if divorce would cause the respondent grave financial or other hardship357 would greatly increase the protection available to the economically vulnerable partner; but experience of the working of the Act soon demonstrated358 that there would be very few cases in which the exercise of the power could even be considered. And the Bill which finally passed into law359 with substantial majorities in both Houses of Parliament360 contained no general power (such as had been (p.375) envisaged in the concordat)361 permitting the court to withhold a decree in cases in which (to use the Archbishop’s Group’s words)362 the petitioner had not only been ‘patently responsible for ending the common life but had blatantly flouted the obligations of marriage and treated the other party abominably’.

The Divorce Reform Act 1969 on the Statute Book

The Divorce Reform Act received the Royal Assent on 22 October 1969; and came into force on the same date as the Matrimonial Proceedings and Property Act 1970,363 1 January 1971.364 The Divorce Reform Act provided (as already noted) that the sole ground for divorce should be that the marriage had broken down irretrievably;365 but went on to provide that the court should not hold that there had been such a breakdown unless the petitioner satisfied the court of one or more of the following five facts:366

  1. (a) that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;

  2. (b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;

  3. (c) that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;

  4. (d) that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition … and the respondent consents to a decree being granted;

  5. (e) that the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition.’

(p.376) The Divorce Reform Act in Practice

For some time after the Divorce Reform Act came into force in 1971 it was possible to believe that the ‘mechanism for dealing with breakdown’367 which it had established—‘the most radical measure in the history of our divorce law’368—had not only ‘commended itself to the general conscience long before it succeeded in gaining the statute book’369 but also that this mechanism had won ‘rapid and easy acceptance’370 not least on the part of the judiciary who had ‘proceeded without pause to implement the spirit as well as the letter of the law founded on breakdown’.371 But this assessment may have been premature.

In the Field of Choice the Law Commission had set out, in words much cited in the years ahead, the criteria by which it believed a divorce law should be evaluated. A good divorce law should

‘(i) buttress, rather than … undermine the stability of marriage; and (ii) when, regrettably, a marriage has irretrievably broken down, … enable the empty legal shell to be destroyed with the maximum fairness, and the minimum bitterness, distress and humiliation’.372

How far did the 1969 Act achieve these objectives in practice?

Buttressing the stability of marriage?

The Law Commission considered373 that divorce law could make a positive contribution towards upholding the stability of marriage; and that this was to be done firstly by ensuring that divorce was ‘not so easy that the parties are under no inducement to make a success of their marriage and, in particular, to overcome temporary difficulties’, and secondly by ensuring that ‘every encouragement is afforded to a reconciliation’ and that the procedure was not such as to ‘inhibit or discourage approaches to that end’.

It soon became apparent that divorce under the new Act was in fact extremely ‘easy’ if the parties agreed on this outcome. For example, the requirement that a petitioner should not only have to prove that the respondent had committed adultery but also that he or she found it intolerable to live with the respondent374 was deprived of any impact by judicial decisions denying that there need be any causal link between these two matters.375 The courts held that it sufficed if the one spouse did genuinely find it intolerable to live with the other whether(p.377) or not the adultery was in any way the cause; and in practice it was extremely difficult to controvert the petitioner’s assertion.376 Solicitors soon learned that an allegation of adultery remained an easy way of obtaining a divorce; and a quarter of all divorce petitions were based on this ‘fact’. Again, it was easy enough to make allegations of ‘behaviour’; and within a few years,377 ‘behaviour’ had become the most often invoked ‘fact’ on which divorce petitions were based. Comparatively few of those who wanted a divorce were prepared to separate for two years in order to establish the relevant ‘fact’.378 The number of divorce petitions rose dramatically.379

The bar on ‘hasty’ divorce

There was, however, one exceptional case in which there remained a barrier to divorce, however much the parties might wish their marriage to be dissolved. As we have seen, the Herbert Act had forbidden the filing of any divorce petition within the first three years of marriage unless a judge gave leave to do so on the ground that the case was one of exceptional hardship suffered by the petitioner or exceptional depravity on the part of the respondent;380 and The Field of Choice381 took the view that this provision was a ‘useful safeguard against irresponsible or trial marriages and a valuable external buttress to the stability of marriages during the difficult early years’. But experience soon demonstrated that an increasing number of spouses were not willing to stay in a marriage which had become unbearable for them. In 1969 there had only been 177 applications for leave to petition within three years of the marriage, but a decade after the coming into force of the Divorce Reform Act there were nearly 2,000 such applications each year.382 And although it seemed that most of these were successful, the requirement to demonstrate that a spouse had been guilty of ‘exceptional depravity’ was hardly consistent with the declared objective of enabling broken marriages to be (p.378) dissolved with the minimum of bitterness, distress and humiliation. Even if applicants increasingly relied on ‘exceptional hardship’ they would still wish to demonstrate that this was attributable to their spouse’s behaviour. They would be advised383to ‘set out in detail all the facts, however unpleasant, which could possibly constitute depravity even if the court would in practice usually regard them as going to proof of exceptional hardship’. That judges had to consider whether the applicant’s sworn recital of the details of the alleged hardship or depravity was sufficiently cogent to justify giving leave to petition in 2,000 cases a year was a demonstrable fact. Whether the existence of the bar had any impact at all on the stability of marriage was much more questionable;384 and in 1984 the Government introduced legislation385 substituting an absolute bar on starting divorce proceedings within one year of the marriage (this period being thought sufficient to constitute the necessary symbolic assertion of the State’s interest in upholding the stability and dignity of marriage).

Encouraging reconciliation?

The long title of the 1969 Act386 claimed that its purposes included facilitating reconciliation; and the Act contained the three specific provisions387 ‘designed to encourage reconciliation’.388 But these seem to have had virtually no effect.389

(p.379) Destroying the empty legal shell with the maximum fairness, and the minimum bitterness, distress and humiliation?

It seems unnecessary to devote much space to the question whether the 1969 Act facilitated the destruction of the ‘empty legal shell’ of broken marriages.390 The statistics391 are consistent with anecdotal evidence392 that in 1971 and for several years afterwards a substantial number of persons were able to obtain the divorce which their legal spouse had, perhaps for many years, denied them.393 Moreover, the fact that the court would sooner or later, in all save the most unusual cases, be bound to grant a decree394 made the pressure to agree to divorce (whether based on adultery, behaviour, or some other ‘fact’)395 in return for acceptable financial and other settlement provisions considerable.

(p.380) Destroyed with the maximum fairness, and the minimum bitterness, distress and humiliation

It seems much more doubtful whether the new divorce law allowed marriages to be dissolved with the maximum fairness and the minimum bitterness, distress and humiliation to those affected. True, section 1 of the 1969 Act declared that the sole ground for divorce was to be irretrievable breakdown. But it soon became clear that in reality the 1969 Act retained fault-based divorce alongside no-fault separation divorce. Contrary to the expectations of the reformers, a comparatively small proportion of divorce petitions were founded on consent after two years’ separation;396 and an increasingly high proportion397 were founded on ‘behaviour’.398 There was a significant body of evidence399 suggesting that respondents were often shocked by the allegations made against them in ‘behaviour’ petitions and resented being stigmatised in this way.400 The rules required401petitioners to set out their complaints in some detail: in one case, reported in 1974402 the written pleadings in a case founded on ‘behaviour’ (p.381) covered 66 pages. If the allegations and denials were persisted in, the resultant trials could be degrading, sordid, bitter and hostile. For example:

In O’ Neill v. O’ Neill403 the wife complained that the husband (amongst other failings) did not have adequate standards of personal hygiene. ‘The wife said he hardly ever bathed himself; the husband said he bathed once a week. The judge made a specific finding that he was a reasonably clean man …’

In Mason v. Mason404 the husband alleged that the wife’s refusal to permit intercourse more than once a week constituted behaviour such as to make it unreasonable to expect him to live with her. The court disagreed.

In Livingstone-Stallard v. Livingstone-Stallard405 the wife alleged that the husband constantly criticised her over petty things (such as her attitude to housework and the efficiency of her methods of washing underwear) adopted a disapproving and boorish attitude to her and retaliated for her supposed failings by sweeping her belongings into cardboard boxes.

The ‘special procedure’ and its impact

The Divorce Reform Act had carefully preserved406 the distinctive requirement that the court inquire, so far as it reasonably could, into the facts alleged by the petitioner and into any facts alleged by the respondent; and for some time after the coming into force of the 1969 Act the courts continued407 to assert that the law required judicial care and scrutiny to ensure that what was described408 as the stringent test of breakdown had been satisfied and that the court’s function was not merely to act as a ‘rubber stamp’ even in cases in which the parties had come to an agreement.409 But research carried out in 1973410 cast serious doubts on whether the typical, necessarily rather perfunctory, hearing of undefended (p.382) cases (lasting perhaps ten minutes) commanded petitioners’ confidence and respect or served any other useful purpose; and this finding was eagerly seized on by a Government only too conscious that the enormous growth in the number of divorce petitions had made the provision of formal judicial hearings in all cases burdensome in terms of judicial time and expense (much of which would be born by Legal Aid and thus ultimately by the taxpayer).

In 1973 the Conservative Government applied a so-called ‘special procedure’ to some undefended divorces:411divorce was to be granted after an examination of printed forms lodged by the parties carried out by a District Judge in private and without any attendance by the parties; and in 1976412 the ‘special procedure’ was applied to all undefended413 divorce petitions.414 It was intended in this way to make the grant of a divorce decree so simple that petitioners would not need (p.383) legal aid to end their marriages; and legal aid415 was accordingly withdrawn from undefended divorce.416

The savings expected to follow from the introduction of the special procedure were, in the event, never made;417

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