The Matrimonial Causes Act 1857³¹ provided that either party to a marriage might petition for a decree of judicial separation on the ground of desertion without cause for two years and upwards;³² whilst magistrates’ courts had since 1886³³ had power to make orders against a husband guilty of deserting his wife for any period. The courts thus had long experience of the concept of desertion (which had been elaborately defined by the Ecclesiastical Courts³⁴ before 1857) and it might have been thought that they would find little difficulty in interpreting the provision of the Herbert Act³⁵ making desertion a ground for divorce. Indeed, it was because desertion was a well-settled legal concept that Herbert (p.256) agreed to the removal of the statutory definition which he had included in the first draft of the Bill.³⁶

But quite how well-settled was the law? No doubt everyone accepted that there had to be a separation against the petitioner’s will, and no doubt the petitioner had to be able to persuade the court that the respondent intended to bring the married life to an end without any sufficient cause; but the courts had refused to attempt any comprehensive definition, and there were difficulties even in deciding what ‘separation’ meant. There could, of course, be no doubt that the men who had emigrated to the colonies and United States were ‘separated’ from the wives whose plight had so much concerned the Gorell Commission, but other cases were not so simple. In wartime Britain and for long afterwards there was an acute housing shortage.³⁷ Was the law to deny a divorce to a couple who wanted nothing to do with each other but could not find anywhere else to live? In 1949 the Court of Appeal decided that a husband who shut himself up in one or two rooms of the house and ceased to have anything to do with his wife was (as Denning LJ put it)³⁸

‘living separately and apart from her as effectively as if they were separated by the outer door of a flat. They may meet on the stairs or in the passageway, but so they might if they each had separate flats in one building. If that separation is brought about by his fault, why is that not desertion? He has forsaken and abandoned his wife as effectively as if he had gone into lodgings. The converse is equally true. If the wife ceases to have anything to do with, or for, the husband and he is left to look after himself in his own rooms, why is not that desertion? She has forsaken and abandoned him as effectively as if she had gone to live with her relatives’.

So the requirement of ‘separation’ was satisfied provided that there was a complete separation of households. But this criterion would only be met if there was no sharing of any aspect of domestic life.³⁹ In particular, the mere fact that (p.257) one spouse refused the other any sexual relationship⁴⁰ was insufficient as the basis for a finding of desertion:⁴¹

In Weatberley v. Weatherley⁴² a 22-year-old RAF sergeant married a 30-year-old spinster in 1941. On the three occasions on which the husband had short periods of leave the couple had intercourse in the wife’s flat; but in November 1941 the wife told him that ‘she thought this sex business was horrid, and beastly and she did not want any more of it’. Thereafter they slept in separate rooms, but otherwise lived as a normal married couple. Eventually the husband petitioned for divorce. He was unsuccessful both at first instance and on appeal up to the House of Lords.⁴³

The difficulty of deciding whether there was a sufficient factual separation to allow the court to make a finding of desertion paled into insignificance compared with the ‘metaphysical niceties’⁴⁴ to be applied in interpreting the requisite mental element. Again the policy was clear: the law was not to allow a marriage to be dissolved merely because the parties had been separated for some years; and if the parties had agreed to separate there could be no desertion. The vital difference between a consensual separation and a separation which had (p.258) been caused by one party deserting the other had to be maintained.⁴⁵ The petitioner had to show the respondent had intended to break the marriage up for good and that the petitioner had not agreed to this.⁴⁶

But this was not as straightforward as it might seem. Of course, there were cases in which it was possible to argue that an apparent consent was not in reality a consent to separation at all.⁴⁷ But it was the statutory requirement that desertion had to be ‘for a period of three years immediately preceding the petition’ which had the most striking impact. As the Master of the Rolls⁴⁸ put it in 1952:⁴⁹

‘… desertion as a ground for divorce differs from the statutory grounds of adultery and cruelty in one important respect. The offence founding the cause of action is not complete—is (as it were) inchoate—until the action is constituted. If one spouse has committed adultery or has treated the other with cruelty, the latter has an accrued right to petition for divorce. He or she may repudiate the marriage and is no longer bound to affirm it and reinstate the offending spouse. The deserted spouse has no such right, no such election. If the deserting spouse genuinely desires to return, his or her partner cannot refuse reinstatement.’

This has an undeniable logic, but led to a good deal of tactical manoeuvring. First, a spouse in desertion could provide himself with a defence by the simple device of making a so-called ‘bona fide offer to return’.⁵⁰ Secondly, if the offer was refused without reasonable cause the person to whom the offer had been made became the deserter (a fact which was of considerable significance at a time when a spouse in desertion had no right to financial support from the other).⁵¹ Not surprisingly, astute divorce lawyers became adept at drafting such offers:

In Price v. Price⁵² the wife left and took the children with her. Husband and wife each petitioned for divorce. The judge held that ‘neither of this ill-assorted couple’ had succeeded in establishing a case of cruelty against the other.⁵³ The wife’s solicitor subsequently drafted a letter saying that the wife felt ‘good will and a bona fide desire by both parties to forget and forgive might save the (p.259) marriage’; and she offered to return to the matrimonial home provided only that neither mother-in-law visited them there. The judge found that, although the wife hated the husband and had hated him for some time before she left him, she was none the less willing to return to the home so that her husband could support her financially there. The court held that by leaving the husband the wife had put herself in desertion, but that her offer to return was genuine in the sense that ‘she was willing to implement it, although not anxious to do so’ and would have much preferred for him simply to pay her an allowance. The result was that the husband became the party in desertion. Accordingly he either had to take the wife back and maintain her under his own roof as his wife or provide financial support for her to live somewhere else.

A well-drafted letter could be useful in other situations too. A couple might drift apart, recognise that their marriage had broken down, and want to regain their single status. Could anything be done if the man did ‘not like the idea of taking some strange female to a hotel’?⁵⁴ The answer was that the husband could write his wife a letter drafted so as to make it appear that he had in law deserted her, and then she would (in spite of the fact that the separation was in reality entirely consensual) be able to petition for divorce after they had lived apart for three years on the ground of desertion.⁵⁵ And, for those who did not want to wait for three years, it seems that a skilfully drafted letter written after the separation⁵⁶ could be made to operate retrospectively⁵⁷ and form the basis for an immediate divorce. In short, the appearance of desertion could be manufactured (albeit not so easily as was possible with adultery).

(p.260) But it was the law’s insistence that a factual separation could only constitute desertion if it were ‘without cause’ (words specifically included in the statutory definition of the ground for divorce) which gave rise to most forensic difficulty. Once again, the courts had to define the limits of what one spouse could be expected to tolerate, and the answer was: quite a lot. True, if one spouse had committed one of the traditional matrimonial offences (most commonly adultery or cruelty)⁵⁸ the other could not be expected to continue to share a home with him or her. But the courts were reluctant to allow anything else to relieve a spouse of the duty to cohabit. ‘The ordinary wear and tear of married life’, such as every spouse bargained to accept when taking the other ‘for better or worse’,⁵⁹ was not to be sufficient justification for breaking up the family home.⁶⁰ Only ‘grave and weighty’ conduct making ‘the continuance of the matrimonial cohabitation virtually impossible’ would suffice:⁶¹

In Timmins v. Timmins⁶² the trial judge found that the husband was overbearing, domineering, had a hasty temper, habitually expressed himself in rapid unmeasured terms, and was insistent on maintaining his rights as a husband. The trial judge held that such behaviour did not justify the wife’s leaving. Rejecting the wife’s divorce petition founded on alleged cruelty the judge granted the husband a decree of restitution of conjugal rights.⁶³

The courts’ restrictive approach was influenced by the development of the concept of so-called ‘constructive’ desertion. It had long been accepted that the person who actually left the home was not necessarily the one who was responsible (p.261) for disrupting the home and breaking up the marriage. If one spouse (say the wife) had in reality been driven out by conduct making it ‘unbearable for a wife with reasonable self-respect, or powers of endurance, to stay’ the husband could be said to have constructively deserted her.⁶⁴ Three years later the wife would be entitled to petition on that ground.

The courts were concerned that a liberal interpretation of this concept might ‘run wild’⁶⁵ and lead to the creation of a new ground for divorce—in effect, mere incompatibility of temperament and unhappiness—not prescribed by statute.⁶⁶ Judges protested⁶⁷ against cases in which the wife left the matrimonial home merely because she was unhappy about her husband’s behaviour, refused his offers to return on the ground that his behaviour justified her living apart from him, and then promptly charged him with constructive desertion.

It became clear that no charge of constructive desertion could succeed unless the judge would think that the husband’s conduct went beyond the ‘ordinary wear and tear of married life’.⁶⁸ Otherwise, as we have seen, there would be no justification for leaving the home, much less making that the basis of a divorce petition. But what did that mean in reality? Inevitably different judges applied different standards:

In Hall v. Hall⁶⁹ a Lancashire couple had been married for 21 years, but the marriage was unhappy and the husband’s drinking habits appeared to be the cause (p.262) of the trouble. He would go out most evenings of the week, return home drunk in the early hours of the morning, and cause disturbance by banging and shouting, depriving his wife and teenage children of their sleep and peace of mind. Notwithstanding the fact that he was never violent to the wife and that there was no evidence of ‘any disgusting behaviour such as vomiting or being unable to control his bladder’ the local magistrates⁷⁰found his behaviour to be in excess of what any decent spouse could be expected to endure and that it was equivalent to expelling the wife from the matrimonial home. The husband successfully appealed to the Divisional Court,⁷¹ where the President of the Probate Divorce and Admiralty Division of the High Court⁷² accepted the argument put forward on the husband’s behalf that although his conduct was undoubtedly unpleasant ‘it was such as was unfortunately required to be suffered by wives on many occasions’, and that it would be ‘impossible’ to hold that the husband’s conduct was serious enough to justify the wife leaving. The Court of Appeal was more sympathetic to the wife’s plight. Although the question whether conduct was capable of constituting constructive desertion was a matter of law, cases such as this fell into a ‘no-man’s land’ where the question was one of fact and the magistrates were best able to assess the gravity of a spouse’s conduct ‘in the light of the social environment of the parties and the local mores with which they would have a particular familiarity’.

The most serious conceptual difficulty in determining the scope of constructive desertion lay in defining the mental element necessary on the part of the alleged offender. In some cases, no doubt, malicious motivation or an actual intention to injure would make it clear that the husband intended the wife to leave. But suppose that the husband simply did not know that his conduct would, if persisted in, in all probability result in her leaving? Or suppose that the husband, whilst appreciating that his wife might leave, none the less desired that she should stay?

There was an acute conflict on this. Some said that, however bad the husband’s behaviour, he could not be held guilty of constructive desertion if the facts showed that the last thing he desired was that the wife should leave him;⁷³ but others thought that, since a man is presumed to intend the natural and probable consequences of his acts, a man would be held to have the necessary intention to found a charge of constructive desertion if he must have known that his conduct (p.263) would cause her to leave, however passionately he might desire or request that she remain.⁷⁴ The correct answer to the question remained doubtful.⁷⁵

The question of intention also caused difficulty in cases in which one party was suffering from mental illness. Suppose, for example that a wife had delusions about her husband’s behaviour and believed that he was frequently committing adultery with his secretary. The courts held that since desertion involves an intention to repudiate the obligations of marriage the situation should be assessed as she believed it to be. A wife would have had good cause to live apart from an adulterous husband, and accordingly the deluded wife could not be guilty of desertion. But supposing that a deeply religious woman believed her husband to have been guilty of ‘grave sins’ which did not however constitute a recognised matrimonial offence? The courts held that such conduct would not justify her in living apart from him, and that she could accordingly be held to have deserted him.⁷⁶

Use of desertion as a ground for divorce

The need to perform such intellectual gymnastics may suggest that the 1937 Act had not been conspicuously successful in making the divorce process more ‘humane, direct and honest’ and thereby increasing respect for the law. But it seems that the legal profession learned how to manipulate the technicalities in their clients’ interests. In 1938 over a third of divorce petitions were founded on desertion; and in the years after 1949 desertion even overtook adultery as the most favoured ground alleged in petitions.⁷⁷ What is perhaps more remarkable is the substantial increase in the proportion of petitions alleging cruelty in the years after World War II.

Although cruelty only became a ground for dissolving a marriage in 1937, the legal concept had long been familiar. The leading authorities dated back to the (p.264) Ecclesiastical Courts’ decisions on divorce a mensa et thoro;⁷⁸ since 1857 cruelty had been a ground for judicial separation and one of the possible aggravating elements in a wife’s divorce petition, while since 1895⁷⁹ magistrates’ courts up and down the country had frequently had to adjudicate on complaints that a husband had been guilty of persistent cruelty to his wife.⁸⁰Not surprisingly, therefore, Herbert agreed to drop the elaborate definition of ‘cruelty’ included in the Bill first presented to Parliament;⁸¹ and the House of Commons was content to leave it to the courts to interpret the provision that either husband or wife could petition for divorce on the ground that the respondent had since the celebration of the marriage treated the petitioner with cruelty.⁸²

Evidence of specific facts required

The starting point in any cruelty case was always the need for evidence of the facts on which the petitioner relied. The petitioner’s solicitor would translate the complaints elicited from his client’s statement into the formal language of legal pleadings.⁸³ The details of each incident (including the date when and the address at which it had occurred) would need to be set out. Evidence of witnesses would have to be obtained. Finally the court would have to be convinced of the truth of the petitioner’s allegations; but provided the judge made clear(p.265) findings based on the evidence presented to him the Appeal Courts would be reluctant to upset his decision.⁸⁴

The question of whether the facts proved constituted ‘cruelty’ for the purposes of the divorce law was a question of law; and once again there were difficult conceptual issues lurking not far beneath the surface. If one party could plausibly claim that the judge had misdirected himself there could be an appeal to the Court of Appeal or even to the House of Lords;⁸⁵ and over the years significant changes in policy came about as a result of decisions on such appeals.

On 1 January 1938,⁸⁶ however, the law seemed clear. The courts had since the eighteenth century insisted that only behaviour which showed ‘an absolute impossibility that the duties of the married life could be discharged’ was to be sufficient.⁸⁷ For this reason, if one spouse’s behaviour were to be held to amount to legal cruelty there had to be proof of ‘grave and weighty conduct’ on the respondent’s part; and the petitioner had also to prove, as a distinct matter, that this conduct had caused ‘danger to life, limb or health or a reasonable apprehension’ of such injury.⁸⁸ Russell v. Russell⁸⁹ illustrates this:

The wife’s conduct (variously described as abominable, atrocious and scandalous) in repeatedly and publicly making allegations which she knew to be false that her husband had been guilty of unnatural crimes (ie homosexual acts) could at that time certainly be said to deserve the description ‘cruel’ in the ordinary sense of that word; but that was insufficient to ‘measure up to the standard set by the ecclesiastical courts in that no physical harm was found to have been inflicted or was reasonably to be apprehended’.⁹⁰ Hence the husband’s petition⁹¹ had to be dismissed.⁹²

(p.266) It was necessary to prove that the respondent had been guilty of grave and weighty conduct, but it was not sufficient to do so. Because of their concern about ‘the possibility of divorce being granted for incompatibility of temperament’⁹³ the courts at this time insisted that some element of intention underlying the respondent’s behaviour be demonstrated. Although it was not necessary to show that the one spouse had actually intended to injure the other, it was necessary to show that the conduct in question had (so it was said) been ‘aimed at’ him or her. Both the requirement that the conduct be ‘grave and weighty’ and that it should have been ‘aimed at’ the petitioner caused the courts considerable difficulty.

There is no need to burden the reader with a long account of court decisions on what constituted sufficiently ‘grave and weighty’ conduct. The content of the test (however difficult it might be to apply to particular facts) was well-settled: it was the same as that applied in cases of constructive desertion:⁹⁴ the conduct had to transcend ‘the ordinary wear and tear of married life’⁹⁵ and be such as to make future cohabitation impossible. True, there could be differences of opinion about what one spouse could be said to have bargained to accept in marriage,⁹⁶ and (as one case demonstrates) even appeal judges sometimes differed amongst themselves:

In Bravery v. Bravery⁹⁷ the wife’s petition alleged that ‘during the year 1938 … the husband without consulting the wife who had often expressed her desire to have more children informed the wife that he … had arranged for sterilisation which operation subsequently was performed, thereby causing the wife to suffer great anguish’. The Court of Appeal, by a 2–1 majority, dismissed her appeal against the trial judge’s decision that since she had consented to the operation the husband’s conduct could not be described as ‘cruel’. But Denning LJ considered that vasectomy done ‘to enable a man to have the pleasure of sexual intercourse without the responsibilities attaching to it’ was illegal, and that in the circumstances the husband had been guilty of cruelty even if the wife had consented.

Sometimes these differences of opinion caused great anguish to those involved:

In King v. King⁹⁸ the husband petitioned for divorce on the ground of his wife’s cruelty. He claimed that his wife had not only twice committed acts of physical violence against him⁹⁹ but that her constant nagging allegations about his (p.267) alleged adultery had damaged his health. At the conclusion of a five-day trial, the judge found that her behaviour constituted legal cruelty, and granted the husband a decree of divorce. But the Court of Appeal (by a majority of 2–1) held he had been wrong; and the House of Lords (after a six-day hearing, and by a majority of 3–2) upheld the Court of Appeal’s decision. The parties remained married.

The question whether the respondent had to be shown to intend harm or injury to the other was one which the courts found extremely difficult. Of course, the fact that there was an ‘element of malignity’ in the respondent’s conduct would always be a relevant fact;¹⁰⁰ and if one spouse deliberately set out to hurt the other and thereby caused injury to the other’s health he or she would properly be found guilty of cruelty. But what of the case in which the respondent claimed that he or she had never intended to harm the other spouse? What of the situation in which the conduct complained of was attributable to mental (or physical) ill-health?¹⁰¹

For long these issues troubled the courts and the position was far from clear.¹⁰²