Marriage by Judicial Divorce under the Matrimonial Causes Act 1857
The Catholic Church’s view of marriage was that it could not be dissolved: those whom God had joined together were not to be put asunder by any human act. But after the Reformation English law no longer entirely reflected this doctrine. It is true that divorce by decree of the civil courts was only introduced into the law in 1857 by the Matrimonial Causes Act of that year. But it is not true to say that there was no divorce in England before that Act came into force on 1 January 1858.1 A man could have his marriage dissolved before as well as after the 1857 Act if he could establish that his wife had committed adultery,2 that he himself had not done so, and that there was no connivance or collusion between the parties.3
What the 1857 reforms did do was greatly to simplify procedures. Before the 1857 Act a man seeking divorce had first to obtain a divorce a mensa et thoro (an order permitting husband and wife to live separate and apart) from the Ecclesiastical Court. Then he had to obtain judgment in a common law action for ‘criminal conversation’ (that is, adultery). Finally he had to secure the enactment of a private Act of Parliament definitively dissolving the marriage and permitting him to remarry.4 As has been aptly said, ‘Whom God had joined (p.162) together, Englishmen had contrived a painful and labourious method of allowing to be sundered’5 but sundered they were.
Why then was the 1857 Act passed? Its origins certainly do not lie in any concern for abstract justice. Rather they lie in the pressing need, highlighted by the growth in personal wealth associated with industrialisation, to get rid of the ramshackle probate jurisdiction exercised by 350 or so6 ecclesiastical authorities7 and to replace it with a more efficient system of dealing with deceaseds’ property.8 That was done by creating the Court of Probate.9 But proposals to strip the ecclesiastical courts of their probate jurisdiction inevitably raised the question of what should be done with their other non-doctrinal jurisdiction, that is the law of ‘matrimonial causes’; and in 1852 the Government had appointed a Royal Commission10 to examine in particular ‘the mode of obtaining a Divorce a vinculo matrimonii in this country’.
The Royal Commission did not see itself as proposing a legal revolution. On the contrary, it asserted that theprinciples of the existing law were founded ‘on the securest wisdom’ and ought to be retained.11 The Commission simply wanted a modernised secular12 procedure to provide more efficiently the (p.163) results which had been available for more than 200 years to those with sufficient means and motivation. To achieve this, the matrimonial jurisdiction of the ecclesiastical courts would be abolished.13 Instead, the jurisdiction in divorce (and other matrimonial causes) would be exercised ‘in the name of Her Majesty’ in a Court of Record called14the Court for Divorce and Matrimonial Causes.15 True this would increase the role of the State at the expense of the Church but this was the price to be paid for increasing the efficiency of the court system.16 And it was as a simple measure of rationalisation that the Bill was presented to Parliament.17
MORE EFFICIENT DIVORCE LIKELY TO INCREASE APPETITE FOR DIVORCE?
The difficulty with this approach was that making the divorce process more ‘efficient’ could also be seen as making divorce ‘easier’, and inevitably increasing the appetite for divorce and threatening the stability of family life.18 And the proposed legislation had implications in another sensitive area: the Act would continue to discriminate against women,19 thereby outraging the group of (p.164) women writers20 and their supporters21 campaigning for improvements to the legal position of women. So the Government’s supposed ‘rationalisation’ drew fire not only from those who, in the interests of morality and family stability, opposed any move towards ‘easier divorce’ but also from the women’s groups who thought the government’s proposed legislation did not go anything like far enough.22
In these circumstances, the Government could not have expected (and certainly did not get) an easy ride. Parliament had to be kept in session ‘for an unprecedented time into the summer, forcing members to endure the burden of debating from noon to two in the morning every day in the broiling heat of one of the hottest summers in living memory’.23 But the Government was determined. Palmerston had a simple message for recalcitrant (and uncomfortable) MPs:24 ‘we shall sit here [he threatened] day by day, and night by night, until this Bill be concluded’. Even though apparently many MPs did drift away to the cool and peace of their country seats25 the Government’s placemen did their duty and the Bill eventually reached the statute book on 28 August 1857 with only 54 MPs and some 80 peers voting in the final divisions.
Quite why Palmerston’s Government persisted in driving the 1857 Bill through to Royal Assent in the face of numerous objections and amendments is not really clear.26 Lawyers27 have tended to accept growing public consciousness (p.165) of the injustices of the old law and in particular its harshness to women28 as the explanation; but there is little evidence of pressure for reform of the divorce law. (In contrast, there was very strong and well organised pressure for reform of family property law.29) Perhaps the explanation is to be found in other factors (including the desire of an assertive Prime Minister to demonstrate his political power).30
The prolonged debates certainly had little impact on the substance of the Act;31 and it is not easy to deny the accuracy, as a matter of strict analysis, of the assessment made of the Act made by Professor OR McGregor32 a hundred years after its enactment: the ‘main and only important purpose of the Act… was to make the civil system of divorce established by the House of Lords in 1697 more widely available. It altered the procedure for obtaining divorce but introduced no new principles’. But this view does not reflect the true impact of the Act. As has happened over and over again, changes in procedure did affect perceptions of the law. (Indeed it could be argued that, in relation to divorce, procedural change has over the years often had more impact than changes in the substantive law.) The question is not so much what the Act did as a matter of law as what it was believed to have done and what impact the popular belief of its effect had on behaviour.
(p.166) In any event, whatever the truth about the motives underlying the introduction and enactment of the Matrimonial Causes Act, it unquestionably constitutes a landmark in legal history33 not least because it remained in its essentials34 the basis of the substantive English law of divorce35 for 80 years, and was increasingly used to provide what lawyers call ‘relief to the unhappily married. We need, therefore, to examine how in fact the Court for Divorce and Matrimonial Causes dealt with cases under the Matrimonial Causes Act 1857 after the new Act had come into force on 1 January 1858.36
THE OBJECTIVE OF THE LAW: TO PROMOTE REVERENCE FOR THE NUPTIAL TIE
The declared policy of the 1857 legislation (as expressed by the Campbell Royal Commission)37 was very clear. The need to protect the ‘reverence accorded to the nuptial tie’ required that the causes of divorce be limited to a ‘few extreme and specific provocations’. Accordingly divorce should only be available if it was established ‘by the strictest proof that adultery had been committed; that there had been no contrivance by which the parties were endeavouring to escape from their solemn obligations to themselves and their children, that the husband and wife could not discharge their mutual duties by continuing any longer to cohabit with each other, and that the party complaining was free from guilt.
(p.167) ’ Extreme and specific provocation’: adultery a pre-requisite to dissolution
The Royal Commission accordingly recommended that dissolution of marriage should ‘be allowed for adultery, and for adultery only’.38 This was to follow the historical precedent of the Private Bill procedure: to allow divorce for adultery provided some protection for the ‘unhappy husband whose bed had been violated’ against the risk of having illegitimate children foisted on him;39 whilst any scriptural justification for divorce was usually based on the fact that Christ appeared to contemplate the validity of divorce for adultery.40
The 1857 Act41 gave effect to the policy that only this most serious of marital crimes should be sufficient ground for divorce42 and for the next 80 years43 a husband could divorce his wife in this country44 only if he45 could prove that she had committed adultery.
Additional requirement imposed on wife petitioners: proof that case one of ‘aggravated enormity’
Wives were treated rather differently. There had been those who wanted to debar a wife from divorce save in a few cases (apparently to be determined on a discretionary case-by-case basis46 as the House of Lords was said to have done (p.168) when considering petitions for Private Acts of Parliament)47 ‘extraordinary in their enormity’.48 But in the end it was accepted that statute should set out a list49 of the matters which would entitle the wife to divorce.50 Simple (even if repeated) adultery was not to be sufficient: the Act51 required a wife petitioner to prove not only that her husband had committed adultery but also that the adultery was incestuous52 or that he was guilty of bigamy or of cruelty to the wife or that he had deserted the wife for two years or more.53 The Act also (p.169) treated rape, sodomy and bestiality as sufficient evidence of a man’s depravity to justify the court granting his wife a divorce.54 It seems remarkable that, in spite of these restrictive grounds, 40% of divorce petitioners55 in the period between 1858 and the end of the century were wives.56
The Ecclesiastical Courts had insisted that proof of the adultery (which they regarded as akin to a crime)57should be ‘strict, satisfactory and conclusive’.58 But as the leading textbook on divorce law59 was to put it, ‘it is rarely indeed that parties are surprised in the direct fact of adultery; and such evidence is apt (p.170) to be disbelieved’. Even so, some of the early reported cases suggest that the Divorce Court could have provided rich pickings for a theatrical farce:
In Alexander v. Alexander and Amos60 a groom employed by the husband claimed to have climbed a ladder to a bedroom window, and seen the wife in the act of adultery with another groom. But the court did not regard this testimony as sufficient. The court refused to believe that such a woman—it seems to have been thought relevant that she was a person of humble origin and of scarcely any education—would ‘at once, without any preparation, [have] condescended to disgrace herself with a groom who had been about two months in her husband’s service; with so little regard for decency, with so little regard as to whether she was discovered or not, that she was guilty of acts of adultery with him in the face of day, without taking the precaution of pulling down a window-blind, or closing a washhouse door’. The judges were prepared to admit that there would from time to time be ‘cases in which passion amounting to insanity may lead a person to forget all sense of duty, all regard for decency and all fear of detection’ but ‘the most cogent testimony’ would be necessary to convince the court.
Sometimes the suspicious would use the services of professional private detectives in order to gather evidence; but, at least in the early days, the court61 was extremely suspicious of testimony from such persons:
In Sopwith v. Sopwith62 the wife of a Tunbridge Wells surgeon and her parents agreed that the explanation for the husband’s unfriendly behaviour was probably that he had taken a lover. They sought the professional services of a private detective. The detective gave evidence that, by peering through a keyhole, he had been able to see the husband kissing the maid and that immediately afterwards he had seen the shadows of two figures undressing in the husband’s bedroom. The Judge Ordinary (dismissing the petition)63 contrasted the position of the private detective with that of constables in the police force. The latter were ‘employed in a government establishment, they are responsible to an official superior, they have no pecuniary interest in the result of their investigations’ whereas ‘when a man sets up as a hired discoverer of supposed delinquencies, when the amount of his pay depends upon the extent of his employment, and the (p.171) extent of his employment depends upon the discoveries he is able to make, then that man becomes a most dangerous instrument’.
Adultery usually inferred from evidence of inclination and opportunity
In the absence of Ocular proof the best that the court could do was to look to evidence of the parties’ adulterous inclination and the opportunity they had had to commit adultery. The court would usually be prepared to infer that a spouse had committed adultery if there was evidence that he or she had engaged in what were described as ‘indecent familiarities’ and that there had been an opportunity to succumb to temptation:
In Wales v. Wales and Cullen64 a barman gave evidence that he had seen the wife kissing the co-respondent,65 and that he had subsequently seen the wife sitting in her underwear on a bed whilst the co-respondent was sitting in a chair in the same bedroom with his boots off. The court granted the husband a decree on the ground that his wife had committed adultery.
Confessions viewed with suspicion
Would it be sufficient if the wife admitted her adultery? The courts treated such confessions with the utmost circumspection and caution. To accept uncorroborated confessions would encourage collusion and make it far too easy to get a divorce merely because both parties wanted to escape from the marriage. And the courts hinted that ‘other sinister motives’ might lead a frustrated woman to admit to a relationship existing only in her fevered imagination.66 For these reasons, the general rule was that a confession would only be accepted as sufficient if corroborated by other evidence.
(p.172) Cogent evidence or guesswork?
The courts’ suspicions about the reliability of uncorroborated confessions may have been justified; but at least a confession was some kind of evidence. In many defended divorce cases, the need for the court to decide whether the facts which had been proved justified it in inferring that a spouse had committed adultery drove it to making dubious value judgments. This problem never went away, and the best illustration of how haphazard the process could be is to be found in a case67 which came before the courts after nearly a century’s experience of determining allegations of adultery:
A distinguished British diplomat whose marriage had broken down many years previously wanted to remarry. He made no secret of his adultery, but his wife refused to petition. He therefore started proceedings alleging that the wife had committed adultery with one Francisco de Amat y Torre. The most telling evidence against the wife and Señor de Amat y Torre was found in letters dating back to 1936; but the trial judge found that these contained nothing inconsistent with a wholly innocent relationship. However, in the Court of Appeal Tucker LJ confidently pronounced that the letters ‘were those of a lover, and a satisfied lover, who had been spending a week with the woman he loved’. A decree was awarded to the husband.68
Birth of a child?
There were, in contrast, cases in which the evidence was compelling. For example the fact that a wife had borne a child of whom the husband could not possibly be the father was virtually conclusive evidence69 that she had committed (p.173) adultery.70 But the law presumed that a husband was the father of any child born to his wife during the marriage, and a husband seeking to rebut this presumption and convict his wife of adultery on the basis of the birth of a child had to show that it was virtually impossible for him to have been the father.71 The task was complicated by technical rules about the admissibility of evidence72 which often prevented the courts from hearing material which most people would have regarded as highly relevant:
The sensational case of Russell v. Russell73—a desperate struggle between ‘a great English family fighting to the last for the honour of its name, and … a woman doing battle for her own honour and that of the little child’74—vividly exemplifies the difficulties of establishing the truth in these circumstances. The essence of the husband’s case was that the wife had born a child and that the husband could not be the father because he ‘had had no connection with her at any time which could have produced conception at the time conception in fact took place’.75 The husband therefore invited the jury to infer that his wife must have committed adultery (perhaps with one of the 30 or more men she claimed (p.174) had been in love with her)76 from the fact that he had never had intercourse with her.77 The child was produced for inspection by the jury in support of the wife’s claim that there was a physical resemblance to the husband (who, when in the witness box, was invited by counsel to move his head so that his ears—the formation of which was evidently thought to be strikingly similar to that of the child—were clearly visible to the jury). After an eight-day trial, the jury could not agree. After an 11-day retrial, another jury (perhaps swayed by counsel’s emotional plea78 that they should give the husband79 his freedom) found the wife guilty of adultery with an unknown man; and the judge pronounced a decree nisi. However, this was not the end of the family’s troubles: the wife successfully appealed to the House of Lords80 which held that, in the interests of public decency, spouses should not be allowed to give evidence about whether or not sexual intercourse had taken place. Accordingly there had been no admissible evidence to rebut the presumption that a husband is father of the child his wife had born, and, in the absence of any other sufficient evidence of adultery against the wife, the decree nisi obtained by the husband81 was (p.175)rescinded; and the High Court made a declaration that the child was the legitimate child of the marriage.82 John and Christabel Russell were thus required to remain husband and wife for a decade after their marriage had broken down beyond repair.83
Legal requirement for proof not understood by public
One of the reasons for insisting on a high standard of proof of adultery was to protect the innocent against being found guilty of adultery, with all the stigma which at that time would follow. But it was not only the husband and wife who might find that an appearance in the Divorce Court left a stigma:
In 1885 a Scottish lawyer, Donald Cameron, petitioned for divorce on the ground of his 22-year-old wife’s adultery with Sir Charles Dilke, a successful Liberal politician with a claim to succeed Gladstone as party leader. The wife confessed, and since the confession was in part corroborated the trial judge accepted it as sufficient proof that the wife had committed adultery and he granted the husband a decree. But since there was nothing in the corroborative evidence to implicate Dilke the judge dismissed him from the suit and ordered the petitioning husband to pay his costs. As Dilke’s biographer84 has put it, the verdict seemed in the popular mind to be that Mrs Cameron had committed adultery with Dilke, but that he had not done so with her. Because of the potentially disastrous effect of the case on his reputation and standing Dilke did not discourage an intervention by the Queen’s Proctor;85 but the court would only set aside the decree if the Queen’s Proctor could establish that Mrs Cameron had not committed adultery with Dilke, and this he failed to do. The decree stood; and Dilke’s political career was destroyed.86
(p.176) As a matter of law, there was no finding against Dilke: the court had found only that Mrs Cameron had committed adultery with someone. True, the court had not found that Mrs Cameron had not committed adultery with Dilke, but it is notoriously difficult to establish a negative. These subtleties were not understood by the public.
Cases such as those described above may have provided good copy for the newspapers87 but they give a misleading impression of the typical divorce. From the beginning, the great majority of divorce cases were undefended; and, in many, husband and wife were both anxious to bring their marriage legally to an end. Hence, the practice developed88 of one party providing the other with evidence (in the form of a confession) that he had committed adultery. To satisfy the requirement that a confession needed to be corroborated if any weight was to be given to it, the confession statement would be accompanied by a hotel bill and other details such as would allow witnesses to be summoned from the hotel in question. But for many years, such evidence was likely to make the court suspicious not only that there might have been collusion89 between the parties but that the ‘evidence’ might have been concocted. This was particularly the case if the adultery in question was alleged to have taken place in a hotel with an unnamed woman. In the 1930s the ‘hotel divorce’ became a matter of major concern, and this was a factor in the movement which eventually led to the Matrimonial Causes Act 1937, discussed at Chapter 6 below.
PETITIONER MUST HAVE ‘CLEAN HANDS’:90 THE BARS TO DIVORCE
The assumption underlying the 1857 divorce law was that marriage was no ordinary contract but a matter in which the State had a vital interest, transcending (p.177) and operating independently of the will of the parties.91 Public policy was an important factor in determining the circumstances in which dissolution should be permitted: hence, although a petitioner had to prove that there were grounds for divorce it did not automatically follow that the court would on such proof automatically grant the decree sought. The Matrimonial Causes Act 1857 established two kinds of ‘bar’ to the grant of the relief sought in the petition. First, there were the so-called absolute (or ‘peremptory’) bars. The court was bound92 to dismiss a petition if the petitioner had been accessory to or had connived at (or had condoned) the respondent’s adultery or if the petition had been presented in collusion with the respondent.93 Secondly, there were the ‘discretionary’ bars. The court was not bound to grant a decree94 if the petitioner had ‘during the marriage been guilty of adultery’ or if he had been ‘guilty of unreasonable delay in presenting or prosecuting’ the petition, or of having ‘deserted or wilfully separated himself or herself from the other party before the adultery complained of, and without reasonable excuse, or of such wilful neglect or misconduct as [had] conduced to the adultery’.95
COURT’S INQUISITORIAL ROLE
The belief that the dissolution of their marriage was not a matter to be left to the parties led not only to the creation of special bars to the grant of decrees but also to the court being given a distinctive role. The Court for Divorce and Matrimonial Causes was not to adopt the accusatorial system of justice of the common law courts (in which the court’s function was to listen to the evidence which the parties choose, in accordance with the rules of evidence, to put before it and decide the case solely on the basis of that evidence).96 Rather, the Court(p.178) was to adopt the inquisitorial approach of the Ecclesiastical Courts.97 It was not to restrict itself to a consideration of the material the parties put before it, but had a duty ‘to satisfy itself, so far as it reasonably can’, not only as to the truth or the facts alleged in the petition, but also whether or not the petitioner had ‘during the marriage been accessory to or conniving at the adultery, or [had] condoned the same’ and the court was also required to inquire into any countercharge made against the petitioner.98 In discharging these duties the court was assisted99 by secret investigators working for the Queen’s Proctor.
For these reasons the divorce process had a distinctive character100 until well after the end of World War II. The text first explains the machinery established in an attempt to enable the court to carry out the investigative functions which statute laid on it. It then gives an account of the three absolute bars to divorce (connivance, condonation and collusion) and the three discretionary bars (adultery on the part of the petitioner, delay and conduct conducing).
The inquisitorial role, the practice: the role of the queen’s proctor101
It was all very well to require the court to satisfy itself about the various matters referred to in the Statute and to inquire into the facts of the case, but the 1857 Act provided no machinery to enable the court to discharge these duties. This soon became all too apparent;102 and in 1861 the Government introduced two amendments to the 1857 Act intended in particular to minimise the horrifying risk that couples might be getting divorces by agreement.103 First, the making of a divorce decree was to become a two-stage process. The court would initially grant a decree nisi;104 which would only be made absolute after an interval of six months.105 It was provided that during that time, any person could intervene in the proceedings ‘to show cause why the … decree should not be made absolute by reason of the (p.179) same having been obtained by collusion or by reason of material facts not brought before the court’.106 Secondly, the Act107 provided that individuals could give information to the Queen’s Proctor at any stage before the decree had been made absolute; and if ‘from any such information or otherwise the said Proctor shall suspect that the parties to the suit are or have been acting in collusion for the purpose of obtaining a decree contrary to the justice of the case’ the Proctor could intervene in the suit, retaining counsel and subpoenaing witnesses.108
Under the powers given by this legislation, what one hostile critic described as an ‘elaborate machinery of espionage’ was said to have been constructed109 at the expense of the taxpayer in an attempt to prevent divorces being obtained by consent or divorces being granted to petitioners who had themselves committed adultery.110 The Proctor’s office would examine111 every undefended case in which a decree nisi had been granted,112 and make further investigations (p.180) if ‘anything attracted attention’.113 It is true that these investigations were often ineffective114 and only rarely led to an intervention115—there was a policy that the Proctor would only intervene if success was certain116—but the knowledge that a neighbour or jealous rival might tell the Proctor117 that the petitioner had committed adultery118 (or even that he was still doing so)119must have made life very uncomfortable for many spouses anxious for what would later be called a ‘civilised’ divorce:
A solicitor practising in Accrington Lancashire told the 1912 Royal Commission120 of a case in which a woman, deserted by her husband and left without means, took a position as housekeeper to a publican. Some years later the publican died and the housekeeper received some money under an insurance policy. This enabled her to instruct a solicitor to obtain a divorce, but the deceased’s daughter considered that she should have had the insurance money and (falsely and maliciously) informed the King’s Proctor that her father had repeatedly committed adultery with the housekeeper. The King’s Proctor duly intervened; and the housekeeper, who had insufficient funds to travel to London, was unable to defend herself. The decree was rescinded; and eventually the King’s Proctor issued execution for his costs. The housekeeper’s goods ‘were actually sold, lock, stock, and barrel, and she was thrown into the street’.121
(p.181) The fact that it was the normal practice for the King’s Proctor to ‘put his sleuths on to’ undefended divorce cases122 seems to have entered into the popular consciousness; but it was some time before the apparatus of ‘anonymous letters, back-door espionage, … cross-examination of cooks, … bribery of maids and porters, the searching of hotel registers, the watching of windows, the tracking of taxi cabs, [and] the exploitation of malicious gossip and interested malignity’ all ‘done in the King’s name to preserve the sanctity of the home’123 began to be questioned.
The inquisitorial role, the substantive law: absolute bars to divorce
(i) Connivance etc
The Matrimonial Causes Act 1857124 required the court to satisfy itself ‘whether or not the petitioner has been in any manner accessory to or conniving at the adultery’ and if the court found that the petitioner had done so it was required to dismiss the petition.125
The word ‘connivance’ is derived from the Latin connivere, meaning ‘to wink at’; and in its simplest form the bar of connivance gave clear effect to the ‘clean hands’ principle: it would be ‘monstrous’ to allow a man who had, for example, driven his wife to prostitution and lived on her earnings to divorce her and marry again.126 Another explanation would see connivance as an application of the principle (usually discussed in connection with personal injury claims) that volenti non fit injuria,127 that is to say that one cannot complain of something to which one has freely consented. But the divorce court gave the word an exceptionally wide meaning.128 A man was expected to take adequate care of his (p.182) property, and therefore he should ‘exact a due purity on the part of his wife’.129 Failure to do so would debar him from subsequently complaining about the consequences:
In Robinson v. Robinson and Dearden130 the husband left his home to look for work. On his return he found his friend Dearden installed as a lodger. Dearden became increasingly intimate with Mrs Robinson, and the two paid no respect to the husband and sneered at him. The rest of the ‘short and simple story’ is best told in the judge’s131 words: the ‘petitioner allowed this state of affairs to go on. Matters got worse and worse, as one would naturally expect, until, on June 1, the petitioner found his wife and [Dearden] coming up to bed after he himself had retired for the night. That ought to have aroused his suspicions. On another occasion the petitioner says that he saw his wife and [Dearden] embracing and kissing each other. What did he do? He merely went down and talked to [Dearden] and threatened to turn him out…. On another occasion the petitioner says he saw his wife leaning on [Dearden] in an indecent or improper manner. What did he do then? Nothing. On June 15 the petitioner comes home and finds them in a bedroom together, but he appears to have accepted the ridiculous excuse that [Dearden] was going to wash his hands. It is too absurd and ridiculous for a man to accept such excuses under such circumstances…. I come to the conclusion that the petitioner by tacit acquiescence, allowed his wife so to carry on and conduct herself … that adultery has resulted’. Mr Robinson was refused a divorce.132
But there were limits to the scope of the doctrine. A husband could perfectly reasonably seek evidence of his wife’s adultery without warning her of what he was doing;133 and the fact that a husband simply tolerated the continuance of an (p.183) adulterous relationship about which he had at first been ignorant did not necessarily make him guilty of connivance.134
’ Condonation’ means forgiveness and it is hardly surprising that a law based on the matrimonial offence should refuse to allow a man who had forgiven his wife’s lapses subsequently to claim the right to cast her aside. But the word ‘forgiveness’ was used, not in the sense in which a moral philosopher or theologian would understand it,136but rather as reflecting the legal principle that one may not at the same time approbate and reprobate.137 By waiving his or her right to take matrimonial proceedings the injured spouse was debarred from relying on the offence which had been condoned. But over the years the courts found it necessary138 to elaborate what had been an essentially simple principle. The case law came to establish a number of propositions.
Mere verbal forgiveness insufficient
In Keats v. Keats and Montezuma139 Mrs Keats eloped with a Spanish musician, Don Pedro de Montezuma. Her husband140 sought a reconciliation, and agreed to say that he had forgiven her for the wrongs she had done him. But he subsequently changed his mind and successfully sought a divorce. The Court accepted that mere words of forgiveness141 could never constitute condonation.
(p.184) Lord Chelmsford conjured up a picture in which every ‘species of artifice or influence’ would be used ‘to extort from the injured party the healing words which are to be of such powerful and uncontrollable efficacy. The strong and sudden impulse of recollected affection, the importunity of friends, or the surprise of weakness, each of these might produce a hasty expression of forgiveness which, when once uttered would be irrevocable. How naturally, too, compassion for a guilty creature, associated with the remembrance of former days of happiness, would find vent in such an expression. Those who felt that perpetual separation must be the inevitable consequence of the unpardonable fault, might still anxiously desire to lighten the load of despair by some kind words of consolation and peace’. Such was not the forgiveness which amounted to condonation; on the contrary it was that ‘which declares it to be impossible …’. The true view of condonation (a ‘blotting out of the offence) involved the offending party being reinstated in the same position he or she occupied before the offence was committed’.
Reinstatement in former matrimonial position required
It did not follow from this that the guilty but forgiven wife must be kept in the style to which she had been accustomed before her fall from grace. By her infidelity the wife had ‘forfeited all her title to be regarded as a wife’ and the fact that the husband required her to live ‘as a degraded wife’ would not prevent the court holding the adultery to have been condoned142 so that neither husband nor degraded wife could remarry.
Relevance of sexual intercourse
Condonation, then, involved reinstatement; but over the years the courts developed the doctrine that a man who, knowing that the wife had committed adultery, had sexual intercourse with her was thereby deemed conclusively to have condoned that adultery unless it could be shown that the intercourse was induced by the wife making a fraudulent misstatement of fact.143 Thus:
In Henderson v. Henderson and Crellin144 the husband told the wife that she must break completely all acquaintance with her lover. She agreed to do so. That night, at the wife’s suggestion, husband and wife had sexual intercourse; but the next morning the wife said she had changed her mind and did not see why she should not go on seeing the other man. The husband immediately left, and never saw her again. The House of Lords held that he had condoned her adultery.
But the rule was not so inflexible where the question was whether a wife had condoned her husband’s adultery by having intercourse with him. The law (p.185) would presume that a wife who allowed her husband to have intercourse thereby condoned his adultery, but this presumption could be rebutted by evidence that she had not intended to forgive the offence. The reason for drawing this distinction between the sexes was said to be that it might ‘be difficult for a wife immediately to break off relations with her husband’145 and that a wife would suffer ‘extreme prejudice’ if she became pregnant as the result of the intercourse.146
Conditional forgiveness: revival of the condoned offence
The law presumed that the innocent spouse had told the guilty ‘you shall not only abstain from adultery but shall in future treat me … with conjugal kindness; on this condition I will overlook the past injuries you have done me’147 and accordingly implied148 a condition that the guilty spouse would in the future149 be true to the marriage vows.150 It followed from this that the condoned offence would be revived if the guilty party either committed adultery or at any time in the future151 committed an offence—such as cruelty, or desertion for however short a period—which would have founded the making by the Ecclesiastical Courts of a decree of divorce a mensa et thoro.152 In effect, the bar of condonation continued ‘only so long as the matrimonial conduct of the repentant spouse [remained] such as the divorce court [could] accept as (p.186) consistent with matrimonial duty’.153 The guilty spouse remained, in effect, on probation for many years.154
The underlying concern of the legislature in making ‘collusion’ into an absolute bar to divorce155 was primarily to ensure that divorce by mutual consent should remain ‘remote from the contemplation of English law’. It was also intended to ensure that no material fact was kept from the court156 and minimise the risk of parties manipulating the divorce process to achieve objectives inconsistent with public policy; and the courts emphasised the duty laid upon them of eliciting the whole truth so that they could be confident in the light of the true facts of the justice of the decision.157 But the Act failed to provide any definition of collusion158 and the meaning had to be worked out by the courts. They analysed the concept of collusion under a number of heads.159
The first type of collusion involved the parties agreeing to put forward a false case in order to obtain the divorce which they wanted.160 The classic example of this kind of collusion was the bogus hotel case: the parties would agree that the husband should provide evidence of adultery which in fact was never committed.
In the second type of collusion the parties agreed to suppress a possible defence to the petition. For example, the fact that the petitioner had himself committed adultery was a discretionary bar to the grant of a divorce decree, and the court was for long unlikely to grant a decree in such a case. The temptation for a couple both anxious to remarry not to reveal the fact that each had (p.187) committed adultery was often not resisted;161 but it was to be many years before the legislature was prepared to face the question whether it was really in the public interest to preserve the legal relationship of husband and wife between couples whose marriages had so completely broken down that both parties had established homes with other partners and had children with them.
The third type of collusion was often much more difficult to identify. The principle was that the court would withhold a decree from a petitioner if the facts on which he relied had been ‘corruptly and fraudulently preconcerted’.162 Thus:
In Todd v. Todd163 the parties separated after living together for only six months; and the husband (owner of an Indian tea estate) promised his wife and her father that as soon as he was richer he would ‘let her be honestly divorced’. His solicitor gave the wife’s enquiry agent details of various addresses in France and Belgium where he intended staying, and the husband eventually wrote to the wife saying that he had ‘performed his promise’. The wife petitioned; but the Judge Ordinary held that the husband had gone to Paris with the wife’s consent for the express purpose of committing adultery and of being detected and that accordingly the court could not grant a divorce. The fact that the husband had had good motives164 was irrelevant.
This type of collusion caused great difficulty because it raised the question of how far the parties could go in agreeing the consequences of ending their marriage. A wife might, for example, be reluctant to take proceedings unless her financial position was first secured. But if the court found that there had been a bargain between the parties (for example that the wife would petition on the basis of the husband’s admitted adultery if, but only if, he paid her a lump sum and met all her legal expenses; or if he agreed that she should have custody of the children)165 the court might well label the agreement collusive and reject the petition. The leading case, decided in 1895, was Churchward v. Churchward and Holliday (The Queen’s Proctor intervening):166
Husband and wife agreed that he would petition for divorce in order to allow the wife to marry the co-respondent. He was not to claim damages against the (p.188) co-respondent;167 and she agreed to settle capital on the child of the marriage, to pay the costs of the proceedings, and not to defend the petition. All this was disclosed to the President when the case came on for hearing, and he referred the papers to the Queen’s Proctor, who intervened. The petition was rejected: the court held that it was bound to reject a petition whenever the initiation of a divorce suit had been procured, or its conduct determined by agreement (especially an agreement not to defend). It was immaterial that no specific fact had been falsely dealt with or withheld. The underlying principle was that a petitioner had to appear before the court ‘in the character of an injured [spouse] seeking relief from an intolerable wrong’. The fact that the petitioner was acting in concert with the respondent cast doubt on whether that was so.
This wide interpretation of collusion undoubtedly discouraged couples from even discussing the financial arrangements and the upbringing of their children until they had actually been divorced; but it was many years before this became a matter of expressed concern.