The Campaign for Reform of the Victorian Divorce Law
The Matrimonial Causes Act 1857 may have made divorce somewhat more accessible; but the previous chapter will have made it clear that many people locked into an unhappy marriage could not hope to get the ‘relief which the law offered to some. Sometimes the reason was that they had no legal grounds for divorce; sometimes it was that, although in theory they had such grounds, they lacked the financial resources necessary to bring their case before the Divorce Court.
The expense of bringing matrimonial cases to court was often associated with the fact that divorce suits could be heard only by the court in London; this chapter begins, by way of background to later developments, with a brief outline of the changes made in the structure of the courts dealing with marriage breakdown in the latter part of the nineteenth century. The rest of the chapter deals with the long campaign for reform of the divorce law which eventually led (80 years after the passing of the 1857 Act) to a measure of reform.
From the Court for Divorce and Matrimonial Causes to the Probate Admiralty and Divorce Division of the High Court
Parliament had taken pains to ensure that the Matrimonial Causes Act 1857 conveyed a very clear message about the importance of divorce: the process of dissolving marriage was to be invested with the full majesty of the law. The Lord Chancellor, the Lord Chief Justice of the Court of Common Pleas, the Lord Chief Justice of the Court of Queen’s Bench, the Lord Chief Baron of the Court of Exchequer, and the senior puisne judge of each of the courts of Common Pleas Queen’s Bench and Exchequer were all to be judges of the Court1 along with the Judge Ordinary.2 The Judge Ordinary sitting alone could exercise the court’s jurisdiction to grant separation or restitution decrees; but he had to sit (p.197) with two of the other judges of the court in divorce and nullity cases.3 The special and distinctive nature of the Court’s jurisdiction was emphasised by requiring it to carry out an inquisition into the facts of every case rather than merely accepting the evidence the parties chose to put before it.
It very soon became clear that these attempts to demonstrate that divorce was ‘different’ were far too ambitious. In particular, it was found difficult to muster the three judges required to deal with divorce and nullity cases. In 1859 a halfhearted attempt was made4 to increase judge-power by appointing the judges of the Queen’s Bench as judges of the Court for Divorce and Matrimonial Causes. Not surprisingly this failed: those judges (said the Lord Chancellor)5 were unable to find time to spare. In I8606 Parliament agreed to abolish the requirement7 that dissolution and nullity petitions should be heard by three judges. But this did not go without a struggle: the Lord Chancellor might claim that to insist on three judges was a ‘mere waste of judicial power’ and point out that a single judge was allowed to decide issues of life and death, but the opponents of the 1857 legislation could plausibly claim that the legislature would never have agreed to a single judge having the power to dissolve8marriage.9 The 1860 Act allowed the Judge Ordinary to sit alone (although he was given express power to sit with another judge of the court if he deemed it expedient to have such assistance10 and to direct that cases be heard by the full court of three judges).11
The 1860 legislation was of some importance in the development of the family justice system; but further (and much more significant) change was in the air. The whole court structure had evolved without any rational plan;12 and the Commissioners appointed to make ‘full and diligent inquiry’ into the structure of the courts recommended that the Courts of Admiralty Divorce and Probate be consolidated into ‘one Chamber or Division of the Supreme Court’.13 The Supreme Court of Judicature Act 1873 gave effect to this recommendation, and created the Probate, Divorce and Admiralty Division of the High Court and made the Judge Ordinary the President of the Division.14
(p.198) Wives, wills and wrecks: unhappy bedfellows
This amalgamation of three apparently so different types of work (‘wives, wills and wrecks’ as AP Herbert was to describe the business of the Division) was not self-evidently rational. It is true that there was a genuine historical link between probate and matrimonial work: both classes of work had been dealt with in the Ecclesiastical Courts, and the specialists who practised15 in those courts developed a knowledge of both subjects;16 and the fact that the 1857 Act constituted the same person Judge of the Court of Probate and Judge Ordinary of the Court for Divorce and Matrimonial Causes17 evidenced this historical association. The modern reader might also find a justification for putting Probate and Matrimonial work into the one Division of the High Court in the fact that both types of work have to do with the family and its functioning. But the decision to transfer the jurisdiction of the High Court of Admiralty18 to the same Division is much more difficult to justify. The argument that admiralty law is also to some extent derived from the Civil Law carries little conviction: there really is ‘no likeness between … a collision at sea or a salvage operation … and a petition for the severance of the marriage tie’.19
This mismatch was not simply an academic problem of classification. The decision to use the admiralty jurisdiction as a make-weight20 in the structural rationalisation of the 1870s soon caused practical problems. In particular, it proved difficult to find lawyers able and willing21 to undertake both admiralty (p.199) and divorce work or even to accept office as President of the Probate Divorce and Admiralty Division22 and the standing of the Division was to suffer. As we shall see, this made it all the more difficult to justify restricting the power to grant divorces to a single Court sitting exclusively in London, with all the implications for expense which that entailed.
Courts for the working classes: the domestic jurisdiction of magistrates
None of this really affected the problem of access to the courts: the working classes often could not afford the expense of travelling to London and paying their witnesses travelling expenses. One answer, suggested in the debates on the 1857 Act, would have been to allow the county courts (originally established in 1844 and by the 1870s well established as a nationwide system of local, professional23 adjudication of civil claims)24 to deal with at any rate certain categories of divorce. But the Government had found no difficulty in discovering plausible objections to such a notion in 1857;25 and it only began to be advocated again after the beginning of the twentieth century.
Such matters were controversial, and certainly proposals to set up the Divorce Court in 1857 had attracted debate and discussion. Surprisingly, therefore, there was virtually no debate or discussion of the creation in the last quarter of the nineteenth century of a parallel system of matrimonial justice administered in what has, somewhat emotively, been described as ‘inferior tribunals, given over to the criminal process, and universally known, because of their close association with the police, as “police courts”\ How this happened was explained by Professor McGregor and Sir Morris Finer a century later:26
‘By the early 1870s, the spread of crimes of violence had become a much agitated “law and order” issue, and lawyers and politicians were drawing particular attention to the ill-usage and sufferings of working-class wives. The evil was described and a remedy proposed in Frances Power Cobbe’s pamphlet, Wife Torture … In 1878, Parliament adopted Miss Cobbe’s proposals. Lord Penzance had a bill before the House of Lords dealing with the costs of the Queen’s Proctor. He tacked on a clause which gave the magistrates’ courts power to grant a separation order …’
The Matrimonial Causes Act 1878 empowered magistrates to make orders that a wife be no longer bound to cohabit with a husband who had been convicted of assaulting her. Under the 1878 Act this power was only exercisable in narrowly defined circumstances;27 but by the end of the century the scope of the magistrates’ courts’ powers was considerably extended. In 1886 the Married Women (Maintenance in Cases of Desertion) Act gave a wife who had been deserted by her husband a direct financial remedy against him.28 Instead of being compelled to enter the workhouse29 until the Poor Law authorities were able to take action against her husband to compel him to meet his obligation to maintain her,30 she could take out a summons. If the court was satisfied that she had been deserted and that the husband was able wholly or in part to maintain her but had wilfully refused or neglected to do so it could order him to pay her a weekly sum not exceeding £2. The Summary Jurisdiction (Married Women) Act 1895 tidied up the legislation;31 and the code thus created (p.201) 32remained the basis for the magistrates’ matrimonial jurisdiction33 for more than 70 years.34
Divorce for the working classes?
In one respect, the magistrates’ matrimonial jurisdiction was extremely successful. By the beginning of the twentieth century far more orders were made by magistrates’ courts than by the Divorce Court: in 1900, the Divorce Court granted 494 divorce decrees and 19 judicial separations35 but magistrates were at the same period making more than 5,000 orders each year. Most of these magistrates’ orders included the provision (originally intended to deal with husbands convicted of violence) that the parties be no longer bound to cohabit, and had precisely the same effect as a decree of judicial separation. ‘Relief for matrimonial problems could therefore be obtained from the magistrates, but that relief did not extend to the right to remarry; and thousands of unhappy men and women, unable to afford the cost of petitioning in the High Court for divorce, were condemned in this way to what had been eloquently described as the ‘living death of separation’. The fact that English law accommodated two separate—and distinctly unequal—systems of family justice became an important element in the campaign for reform which built up in the early years of the twentieth century, but the question of extending jurisdiction to grant divorces to other, more accessible, courts became interlinked with the question of the ground for divorce and was (for most of the first half of the twentieth century) treated as a matter of less importance.
(p.202) Liberalising the ground for divorce
The Matrimonial Causes Act 1857 (as explained above) did not in fact significantly alter the substance (as distinct from the procedures) of the law governing the availability of divorce. By the beginning of the twentieth century the hardship and injustice of the law was widely appreciated, whilst the fact that the law seemed to enshrine a double standard of morality—a man could divorce his wife if she committed adultery; a wife could only divorce her husband if she could prove some specified factor aggravating the husband’s adultery36—was an easy target for the increasingly vocal37 feminist movement. And yet the nineteenth century saw little institutional campaigning for change. Only in 189238 was the issue of reform of the ground for divorce formally debated in Parliament.
The beginnings of the movement for reform
The 1892 Hunter Bill
In 1892 Dr William Hunter,39 a Scottish Professor of Roman Law, had introduced into Parliament a Bill to extend the ground for divorce. But Hunter did not put the case for reform on any strong appeal to considerations of equality and justice. Rather he argued that intermarriage between the English and the Scots was so common that it would be sensible for the law40 of the two countries to be the same. But his claim that Scots law41 (which allowed divorce for simple adultery (p.203) by either spouse or for desertion) had stood the test of 300 years’ experience and would not lead to any great increase in the divorce rate did not convince the Attorney-General.42 The Hunter Bill was lost on a division by 71 votes to 40.
The 1902 Russell Bill
The Hunter Bill was presented dispassionately with calm appeals to reason. But the next, and historically much more significant, attempt at reform was a very different matter not least because the Bill’s promoter (the Second Earl Russell)43 made no secret of the fact that his interest in matrimonial law was intensely personal. The complex story of his first marriage and its ending is worth recording, if only to indicate the corrosive potential of litigation in family matters:
Earl Russell’s marriage to Mabel Edith Scott broke down within three months. Thereafter (according to the Earl) Mabel and her mother started a relentless persecution designed to extract money from him, filing a judicial separation petition alleging cruelty constituted by his committing an Odious crime’ with a young man. That petition was dismissed; but two years later she sought an order for Restitution of Conjugal Rights. The Earl riposted with a petition for judicial separation alleging that her repeatedly and publicly making allegations which she knew to be false constituted cruelty. After a trial before a jury, the Earl was granted a decree. Mabel appealed. The Court of Appeal set aside the judicial separation decree on the ground that the conduct alleged against her was not legally capable of constituting cruelty, but the Court refused the wife’s Restitution application because it considered that Earl Russell had reasonable grounds for refusing to live with her.44 The Earl then instigated a prosecution of Mabel’s mother for criminal libel, and she was sentenced to eight months’ imprisonment. The Earl appealed to the House of Lords against the Court of Appeal’s ruling on what was capable of constituting cruelty, and the wife appealed against the Court’s refusal to grant her the Restitution decree she had sought. The House of Lords by a majority upheld the ruling on cruelty;45 and the wife abandoned her own appeal. The Earl employed detectives in the hope of obtaining proof of the adultery which he believed Mabel was habitually committing at Bray-on-Thames, Berkshire but he was advised that the evidence thus obtained would be insufficient to convince a jury. The Earl and Mabel remained, in law, married.
Whilst fighting an election to the London County Council, the Earl met a Miss Mollie Cooke and wanted to marry her. He could not do so because English law (p.204) did not allow him to divorce his wife, whilst his wife had no grounds upon which she might divorce him even if she wished to do so. The Earl, disenchanted with what he sarcastically described as the ‘beauties of our English law’, agreed with Mollie that they would marry in the United States after obtaining an American divorce notwithstanding the fact that they knew such a marriage would not be valid in English law. They travelled to Nevada where a court granted the Earl a divorce; and he went through a form of marriage with Mollie at the Riverside Hotel, Reno. On returning to this country he was arrested, charged with bigamy, tried for that offence by his peers,46 and sentenced to three months’ imprisonment as an Offender of the First Division in Holloway Prison.47 He served his sentence in conditions of some comfort;48 and Mabel was eventually persuaded49 to divorce him on the grounds that he had been guilty of bigamy and adultery.
It is not surprising that his experiences converted the Earl into a dedicated campaigner for reform of the divorce laws. But the very fact that he had been involved in such a notorious case was a handicap to the cause of reform. Only six months after his release from Holloway he introduced what was in fact a very workmanlike Bill into the House of Lords. This would have allowed divorce to either spouse on the ground of adultery, cruelty, living apart for three years, living apart for a year if both husband and wife agreed on divorce, sentence of penal servitude of three years or longer, and incurable insanity. The Bill would also have made divorce more accessible to those of modest means by giving the county court jurisdiction if the parties’ income were £500 a year50 or less.
These proposals were not strikingly dissimilar51 to those subsequently recommended by the Gorell Royal Commission ten years later and eventually made law in 1937. But, not surprisingly, few of his peers seemed to accept Russell’s claim that his motives were entirely disinterested. The 78-year-old Lord Chancellor Halsbury (‘dancing with rage’ according to Russell)52 (p.205) denounced the Bill as an ‘outrage’ on the House and claimed it would effectively abolish marriage.53 Their Lordships evidently agreed, and formally rejected the Bill (rather than taking the more conventional and gentlemanly course of ‘deferring’ the second reading). The following year Russell tried again54 and again was unsuccessful.
Russell none the less has a secure place in the history of divorce reform: in 1902 he had set up the Society for Promoting Reforms in Marriage and Divorce Laws in England,55 and the Society held public meetings56 and promoted discussion of the issue. In May 1906 ESP Haynes (a practising solicitor)57 engineered a merger of the Russell Society with the Divorce Law Reform Association58 to form the Divorce Law Reform Union. The Union played an important part in the reform movement over the next half century.
(p.206) The Divorce Law Reform Union; and the President of the Probate Divorce and Admiralty Division
The Divorce Law Reform Union’s declared objective was precise, specific, and moderate:59 it was to press for the appointment of a Royal Commission to investigate the working of the law and the options for reform. Over the years, this eminently respectable body60 played a major role in eventually achieving reform of the divorce process.61 But it was the outspoken support for reform voiced by the country’s senior divorce judge Sir John Gorell Barnes62 which transformed the situation.
Gorell Barnes had first publicly revealed his support for reform in April 1906—coincidentally, a few days before the foundation of the Divorce Law Reform Union—in giving judgment in the case of Dodd v. Dodd:63,
Mr Dodd, a Manchester grocer, took to drink, stopped working, and lived off his wife. The wife then left him, went to her mother, and a few weeks later got a magistrates’ order64 based on his neglect to maintain her. The order provided that the husband pay her ten shillings weekly65 and included the usual66 provision that she be no longer obliged to cohabit with him. The husband failed to make the stipulated payments; and nine years later the wife (having found evidence that the husband was committing adultery) petitioned for divorce on the basis of his adultery coupled with desertion. On the facts of the case the husband was not in desertion: he had not the slightest intention of repudiating the marriage or the wife because the wife was in fact keeping him. But in any case, as a matter of law, a judicial separation (and thus a non-cohabitation order) relieved the spouses of the duty of living together, and thus immediately terminated desertion (in this case long before the period of two years necessary in divorce proceedings had elapsed). The fact that the legislation67 provided that an order (p.207)containing a non-cohabitation clause should ‘have the same force and effect in all respects as a decree of judicial separation on the ground of cruelty’ did not mean that the husband was to be treated as if he were guilty of cruelty; and it was not true that a woman who obtained a magistrates’ non-cohabitation order against an adulterous husband could then successfully petition for divorce on the grounds of his adultery and cruelty.
The decision was important enough in its own right. Magistrates habitually made non-cohabitation orders without considering the consequences; and the President’s judgment warned them that in so doing they might well deprive the wife of any right to divorce.68 But the President’s judgment is historically remarkable69 for its sustained indictment of the failings of the law. As we have seen the great majority of matrimonial cases were dealt with by magistrates under the 1895 Act rather than by the High Court under its divorce jurisdiction; and Barnes stated in the plainest terms his belief that the ‘direct tendency’ of magistrates’ separation orders was to encourage immorality.70 Moreover, magistrates’ orders were usually ineffective:
‘rather than pay the allowance ordered, the man goes elsewhere, whether to another town, or to America, or to the Colonies, and forms other ties almost as a matter of course’.
Barnes did not merely point out that the petitioning wife would have succeeded if her case could have been brought in Scotland or most other civilised countries and express his conviction (founded on 14 years’ experience on the bench) that permanent separation without divorce was an unsatisfactory remedy to apply to the evils it was supposed to prevent.71 He denounced the whole of the English law of separation and divorce as ‘full of inconsistencies, anomalies, and inequalities amounting almost to absurdities’. But Barnes was more cautious in putting forward a specific remedy:
‘Whether any, and what, remedy should be applied raises extremely difficult questions, the importance of which can hardly be over-estimated, for they touch the basis on which society rests, the principle of marriage being the fundamental basis upon which this and other civilized nations have built up their social systems; and it would be most detrimental to the best interests of family life, society, and the State to permit of divorces being lightly and easily obtained, or to allow any law which was wide enough to militate by its laxity against the principles of marriage. It is not necessary for me now to express a formal and final opinion upon these serious questions but the consideration of what I have found it necessary to deal with in the judgment brings prominently forward the (p.208) question whether, assuming that divorce is to be allowed at all … any reform would be effective and adequate which did not abolish permanent separation, as distinguished from divorce, place the sexes on an equality as regards offence and relief, and permit a decree being obtained for such definite grave causes of offence as render future cohabitation impracticable and frustrate the object of marriage; and whether such reform would not largely tend to greater propriety and enhance that respect for the sanctity of the marriage tie which is so essential in the best interests of society and the State. It is sufficient at present to say that… there appears to be good reason for reform, and that probably it would be found that it should be in the direction above indicated …’
ESP Haynes72 correctly summed up the effect of Barnes’ ‘fearless utterances’ in the Dodd judgment as having played a large part in overcoming the fierce taboo which (as the debates on the Russell bills suggest) had surrounded discussion of the divorce law. Barnes himself modestly accepted that he had ‘set the ball rolling’73and, although reluctant to be seen74 as a campaigner, he was in truth an extremely effective one.
1906: The Time Ripe For Reform
The political situation in 1906 was propitious for reform. The general election held at the beginning of the year had seen a landslide in favour of the Liberals,75 and Barnes was known76 to represent what his biographer described as ‘the best thinking of the old school of liberal thought’.77 It was not therefore surprising that he should have been appointed to chair an official inquiry into the division of jurisdiction between the High Court and the county court.78 But coinciden tally (p.209) it happened that the Government felt the need to increase the number of judges able to sit in House of Lords appeals.79 Barnes was offered a peerage80 which (after some hesitation) he accepted. The Government had intended the peerage simply to allow him to sit judicially on appeals, but the newly elevated Lord Gorell now also had a voice in Parliament,81 and he soon exploited the opportunities which this gave. Within a few months of taking his seat he moved a motion in the House of Lords seeking support for giving the County Court jurisdiction to deal with poor persons’ divorce cases;82 and in the ensuing debate both the Lord President83 and the Lord Chancellor84 accepted the strength of the case for a further enquiry into the whole subject of divorce85 and its administration. The appointment of a Royal Commission on Divorce and Matrimonial Causes was announced at the end of October 1909.
The Gorell Commission 1909–1912
The Royal Commission’s terms of reference required it to ‘inquire into the present state of the law and the administration thereof in Divorce and Matrimonial Causes, and Applications for Separation Orders, especially with regard to the position of the poorer classes in relation thereto’.86 This was exactly what the Divorce Law Reform Union had wanted. It was also precisely what Gorell’s (p.210) judgment in Dodd had suggested. And it was Gorell whom the Government chose to chair the Commission.87
There was no doubt where Gorell’s sympathies lay.88 But the other members were to some extent representative of particular social groups or interests89 and it was less easy to predict how they would respond to the problems with which the Commission was to be concerned for more than two years.90
The Gorell Commission sat on 71 occasions, 56 of which were devoted to taking evidence.91 Much of this related to the cost of divorce proceedings and painted a clear picture of the poor being excluded from the remedy which the 1857 Act in theory provided. This can hardly have come as a surprise.92 Everyone agreed that no one ought to be deprived of his legal rights merely by poverty;93 but finding an appropriate remedy for the injustice which had been identified was a different matter.
(p.211) The Gorell Commission fails to agree
The Majority Report
Gorell struggled hard to achieve a consensus.94 But his efforts were unavailing: the Archbishop of York, Sir William Anson and Sir Lewis Dibdin dissented from the Majority’s main recommendation. The majority of the Commissioners could not accept that it would be sufficient merely to provide a more accessible tribunal to administer the law established by the 1857 Act. The Majority Report repeated the message given by Barnes in the Dodd case: the law led to immorality;95 and the Report gave repeated illustrations of the practical consequences of making it virtually impossible for the respectable working class to divorce and remarry. For example:
‘… a working man whose wife leaves him to live with another man, is practically compelled to take a housekeeper to look after his children and home, and the accommodation therein is such that … immoral relations almost inevitably result. So again, in the case of a woman, whose husband leaves her and fails to provide for her, she endeavours to support herself and her children by letting lodgings, and the evidence shows how frequently this results in an irregular union with a lodger …’.
‘… the husband turned out to be drunken and unfaithful; the wife went back into domestic service, never saw her husband again, and did not know whether he was alive or dead. She now lives with an engineer’s labourer and has two children. The house is clean and comfortable, and to all outward appearances satisfactory’.
A drunken, unfaithful, and cruel gas stoker, having three children by his wife. The wife left him seven years ago and is now living with another man, by whom she has two children, well cared for but legally bastards. They will have to labour under that ‘horrible disability’ all their lives.
The majority96 asked why divorce should be impossible where the husband had simply disappeared, perhaps to the United States or the colonies? Why should it be denied where one spouse was confined for many years in a lunatic asylum or was serving a long sentence of imprisonment?
For the majority, there was only one answer. The marriage tie should not be seen as ‘necessarily indissoluble in its nature, or as dissoluble only on the ground of adultery; but… [should] allow other grave causes’—desertion for three years (p.212) and upwards, cruelty, incurable insanity after five years’ confinement, habitual and incurable drunkenness, and imprisonment under a commuted death sentence97—as sufficient grounds for divorce.98
The Minority Report
The Majority Report clearly established that the existing law caused hardship; but the minority seized on the absence from the Majority Report of any underlying principle which could justify the changes the majority recommended. In this view, the majority were simply accepting that divorce should be allowed ‘when it is clear that the parties have irreparably lost affection for each other, or … when either party has become permanently alienated from the other’. But (so the minority argued) this was really an argument for divorce by consent or on the ground of mutual aversion—divorce because the ‘parties have grown tired, and mutually desire to make an end’. The minority claimed that the only reason why the Majority Report did not go so far was that the majority realised that public opinion did not at the time support such an extension. But the danger was that acceptance of the majority’s proposals would make a major breach in the principle that marriage was indissoluble. This would inevitably create a ‘habit of mind in the people’99 that divorce was simply a matter for mutual arrangement and would thus:
‘lead the nation to a downward incline on which it would be vain to expect to be able to stop half way. It is idle to imagine that in a matter where great forces of human passion must always be pressing with all their might against whatever barriers are set up, those barriers can be permanently maintained in a position arbitrarily chosen, with no better reason to support them than the supposed condition of public opinion as the moment of their erection … [The result of accepting the majority view] would be practically to abrogate the principle of monogamous life-long union’.100
This (said the minority) was what had happened in the United States and other countries which had relaxed their laws. The illustrations given by the Majority Report of hardship caused by restricting divorce really proved too much, and (according to the minority) established a logical case for allowing (p.213) divorce whenever the marriage has broken down. The minority believed that to accept the majority recommendations would open the floodgates and lead inevitably to the divorce by consent or for ‘mere incompatibility’.
The Royal Commission report pigeon-holed?
The fact that the Royal Commission was divided on the issue of fundamental principle furnished the Government with more than adequate grounds for refusing to introduce legislation;101 but it also served to divert attention from the fact that the Commission had been unanimous in recommending many specific reforms, including equality between the sexes in respect of the ground for divorce, restricting the powers of magistrates to make lifelong separation orders, the introduction of divorce on presumption of death, and the extension of nullity to certain cases of mental illness, epilepsy, venereal disease and pregnancy by a third party.
The reformers were faced with a dilemma: should they, at least as a first step, accept the recommendations on which the whole Commission was agreed or should they push for nothing less than implementation of all the recommendations of the Majority Report? Some believed that a limited reform would be a step on the way to eventual acceptance of the whole Majority Report package; others thought that limited reform would take the steam out of the campaign and make it difficult if not impossible to get legislation extending the ground for divorce in the way the Majority Report had recommended. Disagreement on this central tactical issue was skilfully exploited by opponents of reform.
The effectiveness of opposition to reform was soon to be demonstrated. The first Lord Gorell had died in 1913,102 but in July 1914 his son (who had succeeded to the title) introduced a Bill103 to give effect to the recommendations on which Majority and Minority Reports concurred. The debate provoked predictable opposition from Roman Catholic sources;104 but the Church of (p.214) England was prepared (albeit ‘with the greatest possible reluctance’)105 to support the Bill. Even more significant was the support given by Lord Chancellor Haldane for what he described as a Bill representing the full agreement of all the members of a Royal Commission of ‘great authority and great weight’. To give the Bill a Second Reading would demonstrate approval for what was really a ‘very moderate and substantially non-controversial measure of reform’.106 But nothing to do with divorce could be described as uncontroversial; and Gorell evidently thought it best to withdraw the motion for a Second Reading107 in return for the Roman Catholic Braye doing the same with his wrecking amendment.
Inter armes, silent leges?
A week later, Britain and Germany were at war. There was no time for further debate about divorce reform. The Second Lord Gorell was one of the millions killed in action.108 Many marriages failed to survive the strains of war. In 1914 there were just over a thousand divorce petitions; in 1919 (the first year of peace) there were five times as many.109 As one member of the Gorell Commission rather sourly noted:110 had ‘the recommendations of the Report, been embodied in a Bill which might have passed both Houses, it would certainly have been said, that the great increase of late years of divorces was due to the changes in the Laws’.
Pressure for reform continues: the role of the Divorce Law Reform Union
The War may have destroyed any prospect of immediate legislation; but it did nothing to restrict the build up of pressure for reform. In particular, the Divorce Law Reform Union,111 whose objectives had originally been confined to getting (p.215) a Royal Commission established to investigate the situation,112 now vigorously committed itself to securing the implementation of the 1912 Majority Report.113 Henceforth114 its objectives were to press ‘by every means in its power, for legislation to give effect to the recommendations of the Royal Commission … and to break up the system of permanent separation without the power to remarry’.115 To this end, the Union employed a small paid staff, who with its officers,116 produced pamphlets urging reform, organised public meetings and ran an advisory service;117 and the Union appointed Parliamentary Representatives.118 The irrepressible ESP Haynes119 acted as Honorary Solicitor to the Union and continued to draft Bills.120
(p.216) The DLRU’s membership increased rapidly from the pre-War 400 to perhaps 1,700 in 1919.121 It may be that these were (as the Union’s Journal claimed)122 simply ‘sufferers and sympathisers of all creeds and parties’; but the Union’s commitment to the eminently reputable Gorell proposals enabled it to obtain a ‘respectability that its origins and members lacked’.123 This image was reinforced by the practice the Union adopted of appointing well-known public figures to titular office.124
The Union described125 its activities as ‘patient and progressive toil’ publishing pamphlets, organising ‘drawing rooms’ in Kensington and elsewhere, providing speakers for meetings, continually striving to ‘disseminate its views more widely throughout the country and to educate Public opinion to the more perfect understanding of the need for a reformed divorce law’. The Union’s lobbying was discreet:126 it may be an exaggeration to say that the Union was highly invisible but it was certainly ‘highly influential’.
Pressure for reform: Lord Buckmaster takes the lead
Organised pressure groups can be highly effective in creating a climate of opinion favourable to reform. But the charismatic or enthusiastic individual also has a part to play; and the former Lord Chancellor, Lord Buckmaster127 (one of the most brilliant orators of a period when oratory was fashionable and appreciated) made an important contribution to the campaign for divorce reform. Buckmaster’s passionate support for reform was not confined to speeches in the House of Lords.128 He also wrote articles in the popular (p.217)press129 and letters to The Times130 expressly drawing on his own judicial experience. In 1922, for example, he described in a letter to The Times the experience of trying undefended divorces earlier that year:
‘In no case that I tried did there appear to me the faintest chance of reconciliation; the marriage tie had been broken beyond repair and its sanctity utterly defiled; nor … though I watched with extreme vigilance, was there any single case where collusion could be suggested … Our divorce laws have been condemned by the most competent authority as immoral and unjust… Common sense—but for respect to my adversaries I should have added common decency—rejects the existing law. Is it asking too much to entreat the Government to afford a chance to Parliament to cleanse our laws from this disgrace’?131
The battle of the Bills 1918–1924
Buckmaster had an advantage denied to others: as a member of the House of Lords he had the right to introduce Bills and he wasted no time in doing so. On the day after the armistice,132 Buckmaster moved the Second Reading of a Bill to allow divorce on the basis of five years’ desertion or separation under a court (p.218)order.133 On that occasion the House of Lords refused to give his Bill a Second Reading;134 but in 1920 another Bill, based on the Royal Commission Majority Report135 and supported (in a particularly powerful speech) by Lord Chancellor Birkenhead,136 passed through all its stages in the House of Lords.137 But neither that Bill, nor any of the other Bills attempting comprehensive138 reform introduced between 1920 and 1924,139 became law; and it was not until 1937 that the (p.219) reforms recommended by the 1912 Royal Commission Majority Report were adopted.
The explanation for this long delay seems to lie in three factors. First, both the Roman Catholic church and the Church of England remained doctrinally opposed140 to implementation of the Royal Commission Majority Report; and this opposition still carried weight.141 Secondly, the issue of divorce reform was (p.220) not one on which any of the major political parties had a particular stance142 and support for reform tended to cut across traditional party divisions. In particular, the presence of large numbers of Roman Catholic Liberal and Labour voters in the industrial cities was (and remained for many years)143 an important impediment to extension of the grounds for divorce.144 Thirdly, the Reformers were (as already noted) divided amongst themselves; and this division between those prepared to compromise by supporting a Bill to implement the recommendations on which the Royal Commission had been unanimous and those who believed this would fatally damage the prospects for really effective reform was exploited by opponents of reform and notably by the Archbishop of Canterbury, Randall Davidson.
The Church militant
In January 1921 Davidson wrote to the younger son of the Royal Commission’s Chairman, now the Third Lord Gorell,145 ‘most earnestly hoping’ that he would introduce a Divorce Bill ‘immediately the new Session starts’.146 But this was no Damascus Road conversion to the cause of divorce reform.147 On the contrary, Davidson realised that legislation making access to the Divorce Court somewhat easier for people of moderate means and allowing women to petition on the same grounds as men (changing the administration rather than the principles of the law as he put it)148 would cut away much of the support which a Bill extending the grounds for divorce would otherwise have.149 And the Reformers obligingly (p.221) stepped into the trap which had been laid for them. When Gorell brought his Bill to give effect to the recommendations on which Minority andMajority Royal Commission Reports were agreed before the House of Lords in March 1921,150 the radicals151insisted152 on amending it to allow desertion as a ground for divorce. The Bill did not get off the ground in the House of Commons.
Worse was to come. In 1922 the Coalition Government fell, to be replaced by a Conservative Administration; and there were no prospects for comprehensive reform with a Government in which in which the outspoken opponent of divorce reform Bridgeman153 was Home Secretary and the only slightly more liberal Cave154 was Lord Chancellor. In 1923, the National Union of Societies for Equal Citizenship, committed to achieving equality of status between men and women,155 procured the introduction of a Bill156 allowing women to petition for divorce on the ground of the husband’s adultery. It was difficult if not impossible to find any plausible ground on the merits157 for resistance; and the (p.222) radical reformers (from whom NUSEC had been careful to distance themselves) did not oppose what Earl Russell described158 as a ‘thoroughly bad and inadequate Bill’. Even Bridgeman, the strongly conservative Home Secretary159 accepted equal treatment of the sexes;160 and on the Second Reading Division in the House of Commons 257 MPs voted in favour and only 26 against.161 The Matrimonial Causes Act duly became law on 18 July 1923. The strong feminist pressure for equality ceased to be a factor in the move for further divorce reform;162 and, although the Reformers put on a brave face,163 there seems little doubt that their cause had been significantly damaged.
The extent of the damage was soon to be demonstrated. At the end of 1923 the Conservatives were defeated at a General Election, to be replaced by Britain’s first Labour Government.164 Early in 1924 Buckmaster took the opportunity to reintroduce what was in substance165 his 1920 Bill. Once again, he made a powerfully emotional speech: the Bill (he said) had one purpose and one purpose only, the relief of human agony. But the Archbishop of Canterbury166 was now able to make effective debating points. The reformers had got equal treatment for wives. They had got cheaper divorce.167 What evidence (the (p.223) Archbishop asked) was there of any demand for further change?168 After all, the Mothers’ Union continued to fill MPs’ mail bags with expressions of resolute disapproval of further erosion of the principle that marriage was, and should remain, indissoluble. Where would it all end? With divorce by consent whenever couples grew tired of their relationship?
Buckmaster and his supporters needed to answer that; and Buckmaster believed he could do so if the Labour Government would agree to find the time necessary to allow a Bill to be fully debated in the Commons. But Lord Chancellor Haldane169 was not encouraging.170 The Government’s electoral position was weak. Public opinion was divided. So was opinion within the Government.171 Faced with Haldane’s refusal to promise facilities for the Bill, Buckmaster quickly arranged for an impressive delegation172 to see the Prime Minister, Ramsay MacDonald.173 There was (he said) no point in simply repeating what had happened in earlier years. Would the Government introduce a Bill which would not include any extension of the grounds for divorce, but which would have a long title sufficiently broad to allow amendments made by the Commons of its own free will?
(p.224) MacDonald’s response was (in spite of his protestations of personal support and sympathy) profoundly depressing.174 The Government, lacking a majority in the Commons, could not compel the closure of debate; and their control of the House (and thus the legislative timetable) was ‘more moral than numerical’. There was not ‘the ghost of a chance’ of the Government being able to give time for so controversial a measure as a divorce Bill. MacDonald refused to give even the ‘word of hope’ for the future which the Divorce Law Reform Union asked for on behalf of the ‘sufferers’ it represented.175 But in the event the question was academic: the Labour Government fell176 and there was a Conservative landslide177 at the election on 29 October 1924. Prospects for support from a Government in which Lord Cave was Lord Chancellor and the leading Evangelical churchman Sir William Joynson-Hicks Home Secretary were once again virtually non-existent. No one seems even to have tried directly to persuade the Government (which remained in office until 1929) to provide any help for the reform movement. No one even bothered to introduce a Bill.
Parliamentary battles resume, 1930
There may have been little parliamentary activity whilst the Conservatives remained in power, but the Divorce Law Reform Union continued to campaign.178 At the election held on 30 May 1929—the first in which women had the (p.225) vote on the same terms as men—there was a sharp swing to Labour. For the first time, Labour was the largest party in the House of Commons, and Ramsay MacDonald became Prime Minister for the second time. This did not necessarily mean that his Government would be any more prepared than its Conservative predecessor to risk losing votes by itself becoming identified with divorce law reform;179 but the election did bring into the Commons a number of new Members who were prepared to take action. Of these, the most significant was the lawyer Labour member for South Nottingham, GW Holford Knight KC.180
Divorce as a remedy for national degeneracy?
Holford Knight181 seems to have identified one area in which several traditionally opposing groups might perhaps be brought together. The plight of the spouses of the incurably insane182—in 1921 it was estimated that as many as 17,000 married men and women had been confined in lunatic asylums for more than five years183—was easy to depict in moving terms;184 and the Gorell Royal Commission had accepted that incurable insanity was more effective in destroying the marriage relationship than any of the other causes which might be put(p.226) forward as ground for dissolution.185 The Commission had accordingly recommended that incurable insanity should, subject to certain limitations186 be a ground for divorce.187
There was another factor which influenced the move to allow divorce of the insane. The Eugenic movement,188committed to the belief that moral as well as physical characteristics were inherited, was at the time powerful and influential. It wanted to improve the physical and mental health of the population by encouraging the fit to have children and to prevent the propagation of a degenerate race by preventing the unfit from doing so.189 The result of denying the possibility of remarriage to men and women whose marriages had effectively ceased to exist meant (as Lord Birkenhead put it190 in the debates on the 1920 Buckmaster Bill) that thousands of English men and women
‘in the prime of their lives, who ought to be contributing to the child-strength of the Empire at a moment when the very future of the Empire may depend upon the sufficiency of a virile population’
—were debarred from remarrying and bearing children. It was necessary to control the fertility of the unfit and encourage the fertility of the fit; and considerations such as these had influenced countries such as New Zealand to allow divorce for incurable insanity.191
(p.227) Holford Knight had a limited success. In 1930 (putting at the forefront of his argument the ‘pitiful cases of spouses who have been in asylums for many years’ as evidencing the need for relief from a ‘sorely felt grievance’)192 he got leave193 to introduce a Bill which would have allowed divorce where the respondent was incurably insane and had been a certified lunatic for a continuous period of at least five years. But the Government refused to give facilities for the Bill. The ‘present state of Parliamentary Business’ was given as the reason194 but the truth (as we now know)195 is that a majority of the Cabinet were opposed to extension of the ground for divorce.196 Twice Holford Knight repeated the attempt to get an incurable insanity Bill through the Commons,197 and twice he failed.
Getting the Government to recognise its responsibility
Holford Knight explained that the reason for restricting the Bills which he introduced to this single reform198(rather than taking on the whole of the Gorell Report) was that ‘a Bill of that character, making drastic and far-reaching changes in the law should be undertaken only by the Government itself’.199 But the only response was negative.200 Eventually, in February 1934 Holford Knight (p.228) did bring forward a Bill to implement all the Gorell recommendations. He repeated that it was his view that such a Bill should be undertaken by a responsible Government:
but unfortunately ‘it is the case that no responsible Government is in sight, as far as I can see, which will undertake this task, and such is the accumulation of private and public mischief as the result of not proceeding with this reform that I have undertaken this task in the hope that the Government may be persuaded to respond to the general opinion, not only in this House but in the country, that this matter should be brought under close discussion’.201
Holford Knight and his supporters must have been bitterly disappointed by the repeated failure to make progress, whilst the many who remained legally bound to a spouse with whom they had ceased to have any real relationship found it difficult to restrain themselves from expressing their bitter feelings. But, as Sir Claud Schuster204 pointed out:
‘It would be impossible for a Bill to be again and again talked out in the Commons if there were not a very considerable body of responsible opinion averse to the proposal
and he went on to point out the strength of the opposition to extension of the grounds for divorce. In addition to the Roman Catholics, the:
‘whole body of Anglicans—I mean by Anglicans those whose primary interest in life is bound up with the body of doctrine of the Anglican Church—take the same view. They have sympathisers also among those of the laity, who, though not ardent churchmen, are very unwilling to see a further schism between the law of the land and the law of the Church…. Furthermore, objection may be taken to many of the proposals by people who do not share the religious convictions referred to above…. On every one of [the proposed new grounds for divorce] a very powerful argument can be constructed adverse (p.229) to the proposal…. [I]t is impossible to say … that there is a unanimous, or nearly unanimous, body of public opinion outside the religious bodies in favour of the change … I should like to add that, so far as I am concerned, I do not share the religious views, to which I have alluded above, and that I have very little sympathy with any objection taken to divorce … on religious grounds. I do think, on the other hand, that the very grave social considerations which arise upon the proposals of the [Holford Knight 1934 Bill] require a very much greater and more extensive survey than they have yet received before Parliament ought to pass them into law. I think that the proposals lend themselves to all the evils of the present system (which are many and great) and introduce fresh occasions for scandal and hardship, and it is hardly possible to foresee what their effect might be upon the structure of English society …’
And yet within four years the proposals had become part of English law. What explanation can be given for this transformation?
Ridicule more powerful than outrage? Perceptions of the divorce law in practice
There seems little doubt that ‘public opinion’ (an expression which, before the development of scientific attitude surveys is difficult satisfactorily to define) was changing, and in part this may be attributable to a change of approach on the part of those urging reform. No doubt the hardship caused by the law remained a factor, but a strong sense that the existing law was ridiculous and almost corrupt seems to have developed. A law which was supposed to promote (or at least safeguard) morality was in reality encouraging either immorality or perjury:205people who recognised that their marriage was in fact at an end could usually get the freedom to remarry but only by either committing adultery or pretending that they had done so. The result was that the wrong people—the immoral and the untruthful—got the divorce they wanted; the right people—those who took their marriage vows seriously and were not prepared to lie to get their freedom—could not do so.206 A particular problem was the so-called ‘hotel divorce’.
Hotel divorces: law held up to ridicule and contempt?
In 1934, the publication of two novels brought the absurdity of the divorce laws forcefully into the consciousness of people who were perhaps not usually particularly interested in what so often appeared as the boring obsession of the well-meaning or personally involved:
(p.230) In A Handful of Dust207 Evelyn Waugh208 described the legal process whereby a man, spurned by his wife in favour of another, is persuaded to allow himself to be divorced on the ground of adultery (which he has never committed). A week-end was ‘fixed for [his] infidelity’; and his solicitors engaged rooms at a Brighton hotel where the servants were ‘well accustomed to giving evidence’. However, the solicitors stopped short of ‘selecting a partner’ because (although they had ‘on occasions been instrumental in accommodating clients’) there had also been complaints. Indeed they had had one recent case ‘involving a man of very rigid morality and a certain diffidence’ which was only resolved by his own wife going with him (admittedly wearing a red wig) and ‘supplying the evidence’. Eventually, the husband finds a night-club hostess who ‘knew how to behave at a hotel’. Unfortunately, the hostess’s child care arrangements for her eight-year-old daughter break down, and the child accompanies her mother and the husband to the hotel thereby greatly increasing the stress of the procedures. As one of the private detectives (worried about his firm getting mixed up with the King’s Proctor) remarked, ‘bringing a kid into it’set a ‘nasty note’. But the necessary procedures were followed, and the case was ‘regular and complete’.209
Although Evelyn Waugh had had personal experience of the working of the English divorce laws his novel was not a polemic. In contrast, AP Herbert was happily married210 and appears to have been animated only by a keen sense of (p.231) the absurdities of many aspects of English law211 and the cruelty which it could cause. His novel Holy Deadlock (aptly described by his biographer212 as ‘a tract for the times presented as fiction’) brilliantly satirised the absurdities of the divorce process:
A husband agreed to ‘behave like a gentleman’ and provide the evidence needed for the divorce which his wife wanted. Normally in such cases (as Herbert put it) ‘good lawyers were engaged, a good many pennies had to be put in the slot, but the divorce emerged from the machine at least as easily as a motor licence, and rather more easily than a passport’; and— although his solicitor refused to provide direct assistance213—the husband duly found a ‘secretarial agency’ which provided the services of a ‘well-trained expert, discreetly doing her job, no more’. (The ‘expert’ portrayed in the novel is able to keep her blind father and ñvc siblings on the proceeds of this work.) Evidence was duly provided, but following a hilarious series of accidents involving an intervention by the King’s Proctor (whose agent’s activities in prowling the corridors of a large hotel ‘in the King’s name and a dressing gown’ are described with relish) husband and wife are denied the divorce which they both want.
‘The husband and wife have tried to make a success of the marriage but have found it impossible and breaking point is reached at last. They probably have a frank discussion as a result of which the husband leaves and promises to supply his wife with evidence for a divorce. He finds a lady who is willing and takes her to a hotel where they occupy a double room. Adultery may or may not take place … but … adultery will appear to have taken place. He then writes to his wife a pathetic letter indicating that he has fallen in love with another woman who he believes will make him happy and he encloses the hotel bill (p.232) in case she decides to take any action. The wife consults her solicitor, tells him a discreet version of the story carefully avoiding any mention of the discussion which took place on their parting and produces the bill. The solicitor obtains the necessary evidence from the hotel and in a few weeks they are divorced.’
Even the judiciary were prepared to accept that cases such as this did occur,216 and were concerned about the effect of publicity. From this perspective, what was important was not so much what did in fact happen but what the public were led to believe happened. As the President of the Probate Divorce and Admiralty Division wrote to the Lord Chancellor’s Permanent Secretary in 1936:217
‘There always has been, and no doubt there always will be, a certain amount of collusion in connection with divorce. The danger is not that some individuals should present collusive suits, but that it should become notorious that the presentation of a collusive suit is the recognised way to obtain a divorce … [The judges] all think that the scandal is limited to about 5%, or possibly a little more, of the undefended cases heard in London, while the rest are perfectly clear, straightforward cases, which give us no anxiety at all. But unfortunately this comparatively small percentage of cases includes those which are most talked about in general society and there are definite signs that the example they set is spreading. Already in the press … in novels, and on the stage, it is assumed that this class of case is the normal. That is bad enough, but it would be disastrous to the respect for the law if this assumption became increasingly true.’
Herbert’s book sold 90,000 copies.218 His exposé of the reality of the divorce process struck home. In June 1934 the Scottish Unionist MP Frederick Macquisten KC gave Herbert’s book some gratuitous publicity. He put down a Parliamentary Question asking whether the authorities’ attention had been drawn to Holy Deadlock, a book ‘wherein His Majesty’s Judges and courts and the legal system they administer in matrimonial causes are held up to public ridicule and contempt’.219 The Attorney’s reply that allegations in a work of fiction were not something requiring action merely prompted the rejoinder that the book did recount ‘pretty much what is happening in the courts just now’, and the Attorney’s denial did not altogether carry conviction.
(p.233) Hotel divorces: the abdication crisis
The most dramatic apparent confirmation of the belief that Herbert’s description of the divorce process reflected the reality came two years later shortly after King Edward VIII had succeeded to the throne:
The King had met Mrs Wallis Warfield Simpson in 1931, and a close relationship had developed between the two.220 In October 1936, a judge sitting at Suffolk Assizes had, on her undefended petition, granted Mrs Simpson a decree nisi of divorce on the ground that her husband had committed adultery at a hotel in the Thames Valley with a woman whose name was not given in court. As and when Mrs Simpson’s decree was made absolute she would be free to remarry; and on 16 November the King told the Prime Minister that he did intend to marry her. The possibility that the King’s marriage would put on the throne as Queen a woman with two former husbands living precipitated a constitutional crisis; and on 11 December the King abdicated. It was apparently widely believed that the decree nisi had been obtained by collusion and so for that and other reasons it should not have been granted.221 One writer222 has said that it was generally assumed that Holy Deadlockhad been used as a procedural handbook in the case.
All these matters no doubt contributed to a gradual shift of opinion; but divorce reform was still a topic which none of the political parties was anxious to espouse. The general election held on 14 November 1935 was dominated by foreign policy issues and the problem of mass unemployment; but it turned out to be very significant for the future of divorce reform.
Enter AP Herbert MP
The reason why the 1935 election was of such moment for the history of divorce reform stems from the fact that at that time223 university graduates were (p.234) allowed to vote for an MP in the constituencies in which they lived and also to vote in their own special university constituencies. Herbert224 decided to stand as an Independent Candidate for one of the two Oxford University225 seats. His manifesto226 affirmed that Governments had shamefully neglected Home Affairs, and he specifically committed himself to working for reform in a number of areas227 including the law of divorce.228 Herbert was elected. Since the University’s electors (who, as Herbert was fond of pointing out, included more clergymen than any other English constituency) also returned the anti-divorce Lord Hugh Cecil229 with more votes than Herbert the result can hardly be seen as a massive endorsement of the cause of divorce reform; but Herbert may well have been right in identifying a movement of opinion230 in favour of the cautious reforms231 he advocated.
(p.235) Once elected, Herbert232 wasted no time.233 With the assistance of a former Parliamentary Draftsman234 and advice from a number of sources,235 a divorce reform Bill was drafted and presented.236But it was not a case of first time lucky. Herbert was unsuccessful in the ballot for Private Members’ Bills;237and the Prime Minister responded with heavy sarcasm to Herbert’s suggestion that the Government should set aside a day for discussion of his proposals.238
Herbert was not the only MP who thought that the time had come for the question of divorce reform to be brought into the open: in the 1936 Session Rupert de la Bere, a Conservative MP of impeccable background and credentials,239 drew a high240 place in the ballot. He agreed to take up the Bill which Herbert had drafted: de la Bere did not (he said)241 object to conscientious opposition to change in the law, but he did object to apathy or even cowardice on the part of MPs fearful of electoral damage in their constituencies. What was needed was honesty and courage.
Herbert’s strategy: ‘selling’ divorce reform
Herbert believed the Gorell Royal Commission had stood the test of time and the recommendations of the Majority Report were to be the ‘flesh, bones and blood’ of his own Bill. But he was a realist:
‘the stark fact remained that, for one reason or another, Parliament has not accepted the proposals of the Royal Commission; and it was not my habit to close my ears to new ideas’.242
Hence, the ‘Gorell picture’ needed to be put into a new frame, hung in a better light—and sold.243 The Divorce Law Reform Union and other pressure groups244 had done a lot to create a climate of opinion favourable to reform; but in order to ‘sell’ the Bill Herbert realised he needed not only to compromise with the opponents of reform245 but (if at all possible) get the Government, with its power to control the legislative timetable, to collaborate.
The message which Herbert wanted to get over was that his Bill would ‘strengthen the institution of marriage and increase respect for the law’;246 and this was made explicit in the Bill’s preamble (unmistakably in Herbert’s own words). It was ‘expedient for the true support of marriage, the protection of children, the removal of hardship, the reduction of illicit unions and unseemly litigation, the relief of conscience among the clergy, and the restoration of due respect for the law’ to amend the law.
For this reason, the provisions of the Bill Herbert introduced were significantly different247 from those of earlier attempts at reform.248 First, there were new provisions intended to mitigate the evils of collusion and perjury which he believed infected the existing law. Secondly, Herbert wanted to make it clear that his Bill would facilitate ‘humane and honest divorce in the genuine hard case’, but would do nothing to make divorce ‘too easy for the merely irresponsible and foolish’.249 Hence, the Bill which Herbert and his supporters presented250provided that no divorce should be possible until five years had (p.237) elapsed from the date of the wedding. Reckless marriage and reckless divorce were to be discouraged, and no one was to think of divorce until they had been married for at least five years.251 In this way Herbert hoped to win the support of the Church of England (which had come to accept the possibility of amendment to the secular law of divorce ‘provided that any … amendment does not tend to make marriage a temporary alliance or to undermine the foundations of family life’).252 Thirdly, he included a provision specifically aimed at the Church: the clergy were to be free to refuse the use of a church for the marriage of a divorced person (whether innocent or guilty) whose former spouse was still alive.253 Fourthly, the Bill would ‘introduce the machinery of conciliation’ into the Divorce Court.254Finally the Bill included provisions allowing the dissolution of marriages which had ‘irreparably collapsed’.255Desertion for three years or more, cruelty, incurable insanity, habitual drunkenness, and imprisonment under a commuted death sentence256 were (almost, it was made to seem, as an afterthought) added to the grounds for divorce.
Herbert’s strategy was eventually successful. The Matrimonial Causes Act 1937 provided new grounds for divorce, and in fact most of the provisions grafted on to the Gorell proposals in order to placate potential opponents disappeared along the way.257 The 1937 Act was little different from Buckmaster’s Bill almost two decades previously. How was this achieved?
(p.238) Getting the Government on side
Herbert’s Bill was given a Second Reading in the House of Commons on 20 November.258 Whilst only 78 MPs voted in favour259 very few MPs were prepared to make reasoned speeches against.260 The Attorney-General, Sir Donald Somervell,261 recorded:262
‘The smallness of the vote against the Bill … indicates … not only a change in public opinion but also very definitely resulted from the form of the Bill. In the first place, the Bill is a conservative measure in that it preserves the basic structure of our divorce law in its prohibition of collusive divorce and in other important respects. In addition to proposing the extended grounds recommended by the [Gorell] Royal Commission it contains two provisions which are acceptable to many of those who would oppose a Bill which contained the extended grounds and nothing else. In the first place, the provisions … which preclude a decree within the first five years. Secondly, [the clause permitting the clergy to refuse to celebrate, or allow the use of their churches for the marriage of divorced spouses] to which, I understand, considerable importance is attached by the clergy. Although I think there are some provisions in the Bill which definitely ought to go it may well afford a good opportunity to deal with this very difficult subject.’
It is difficult to imagine clearer evidence of the success of Herbert’s strategy. There were of course Ministers (of whom the Lord Chancellor, Hailsham, was certainly one)263 who strongly disapproved of the Bill; but it appears that there was no support in Cabinet for attempting to block it.264 The question which Herbert had to answer was how should he deal with objections to specific provisions found unacceptable by Ministers, the Judges and Officials? The question for the Government was how far it should allow itself to become involved?