Matrimonial Causes Act in United Kingdom
History
The Act of 1857
Probably few measures have been conceived with such consummate skill and knowledge, and few conducted through parliament with such dexterity and determination. The leading opponent of the measure was Mr Gladstone, backed by the zeal of the High Church party and inspired by his own matchless subtlety and resource. But the contest proved to be unequal, and after debates in which every line, almost every word, of the measure was hotly contested, especially in the House of Commons, the measure emerged substantially as it had been introduced. Not the least part of the merit and success of the act of 1857 is due to the skill which, while effecting a great social change, did so with the smallest possible amount of innovation.
The act (which came into operation on the 1st of January 1858) embodied two main principles:
- The constitution of a lay court for the administration of all matters connected with divorce.
- The transfer to that court, with as little change as possible, of the powers exercised in matrimonial matters by the House of Lords, the ecclesiastical courts, and the courts of common law.
For more information about the history of divorce in Britain, click here.
The Constitution of the Court
The new court, termed “The Court for Divorce and Matrimonial Causes,” was constituted by the lord chancellor, the chiefs and the senior puisne judges of the three courts of common law, and the judge of the court of probate (which was also established in 1857), but the functions of the court were practically entrusted to the judge of the court of probate, termed the “Judge Ordinary,” who thus in matters of probate and divorce became the representative of the former ecclesiastical jurisdiction. For information on The Court for Divorce and Matrimonial Causes, click here.
Modifications of the Act of 1857
Subsequent legislation has made good many of the defects of the act of 1857. In 1859 power was given to the court, after a decree of dissolution or of nullity of marriage, to inquire into the existence of ante- and post-nuptial settlements, and to make orders with respect to the property settled either for the benefit of children of the marriage or their parents; and a subsequent act (41 & 42 Vict. c. 19, s. 3) removed a doubt which was entertained whether these powers could be exercised if there were no children of the marriage. In 1860 a very important change was made, having for its object a practical mode of preventing divorces in cases of connivance and collusion or of misconduct of the petitioner.
It was provided that a claim of dissolution (a provision afterwards extended to decrees of nullity) should in the first instance be a decree nisi, which should not be made absolute until the expiration of a period then fixed at not less than three, but by subsequent legislation enlarged to not less than six, months. During the interval which elapsed between the decree nisi and such decree being made absolute, power was given to any person to intervene in the suit and show cause why the decree should not be made absolute, by reason of the same having been obtained by collusion, or by reason of material facts not brought before the court; and it was also provided that, at any time before the decree was made absolute, the queen’s proctor, if led to suspect that the parties were acting in collusion for the purpose of obtaining a divorce contrary to the justice of the case, might under the direction of the attorney-general intervene and allege such case of collusion. This enactment (extended in the year 1873 to suits for nullity) was ill drawn and unskilfully conceived.
The power given to any person whomsoever to intervene is no doubt too wide, and practically has had little or no useful effect as employed by friends or enemies of parties to a suit. The limitation in terms of the express power of the queen’s proctor to intervene in cases of collusion was undoubtedly too narrow. But the queen’s proctor, or the official by whom that officer was afterwards represented, has in practice availed himself of the general authority given to any person to show cause why a decree nisi should not be made absolute, and has thus been enabled to render such important service to the administration of justice that it is difficult to imagine the due execution of the law of divorce by a court without such assistance. By the Matrimonial Causes Act 1866 power was given to the court to order an allowance to be paid by a guilty husband to a wife on a dissolution of marriage.
This act also can hardly be considered to have been drawn with sufficient care, inasmuch as while it provides that if the husband’s means diminish, the allowance may be diminished or suspended, it makes no corresponding provision for increase of the allowance if the husband’s means increase; nor, apparently, does it permit of an allowance in addition to, but only in substitution for, a settlement. The act makes no provision for allowance to a guilty wife, and it certainly is a serious defect that the power to grant an allowance does not extend to cases of nullity. In 1868 an appeal to the House of Lords was given in cases of decree for dissolution or nullity of marriage.
The great changes effected by the Judicature Acts included the court for divorce and matrimonial causes. Under their operation a division of the high court of justice was constituted, under the designation of the probate division and admiralty division, to which was assigned that class of legal administration governed mainly by the principles and practice of the canon and civil law. The division consists of a president, and a justice of the high 341 court, with registrars representing each branch of the jurisdiction. Appeals lie to the court of appeal, and thence to the House of Lords.
In 1884 the legislature interfered to prevent imprisonment being the result of disobedience to an order for restitution of conjugal rights. That mode of enforcing the order of the court was abolished, and the matter was left to a proper adjustment of the pecuniary relations of the husband and wife; and a respondent disobeying such an order was held to be guilty of desertion without reasonable cause, such desertion having further given to it a similar effect to that assigned to desertion for two years or upwards. The effect of this provision has been that the suit for restitution of conjugal rights is most frequently brought for the purpose of shortening the time within which a wife can obtain a decree for dissolution of marriage.
Proceedings in the divorce court have shown the improvement in the law of evidence which has been effected with regard to other legal proceedings. The act of 1857 made an inroad on the former law, which prohibited evidence being given by parties interested in the proceedings, by allowing a petitioner (sec. 43) to be called and examined by order of the court, absolving such petitioner, however, from the necessity of answering any question tending to show that he or she had been guilty of adultery. In the next year power was given to the court to dismiss any person, with whom a party to the suit was alleged to have committed adultery, from the suit if there should not appear to be sufficient evidence against him or her, the object being to allow such person to give evidence; and in 1859 it was provided that, on a petition by a wife for a divorce on the grounds of cruelty or desertion with adultery, the husband and wife could be competent and compellable witnesses as to the cruelty or desertion.
A few years later, however, in 1869, the subject was finally dealt with by repealing all previous rules which limited the powers to give evidence on questions of adultery with the safeguard that no witness in any proceeding can be asked or bound to answer any question tending to show that he or she has been guilty of adultery, unless in the same proceeding such witness shall have given evidence in disproof of his or her alleged adultery. It has been held that the principles of these enactments apply to interrogatories as well as to evidence given in court.
It is a most remarkable omission in the act of 1857, especially when we remember the high legal authority from whom it proceeded, that the act nowhere defines the class of persons with regard to whom the jurisdiction of the court should be exercised. This omission has given rise to a misapprehension of the law which, though now set at rest, prevailed for a considerable period, and has undoubtedly led to the granting of divorce in several cases in which it could not legally be given. It was supposed that the court could grant a dissolution of marriage to all persons who had anything more than a casual and fleeting residence within the jurisdiction of the court; and this view, although its correctness was doubted by Lord Penzance, the judge of the divorce court, was upheld by a majority of the judges of the court of appeal in the case of Niboyet v. Niboyet (4 P. D. 1).
It was supposed that such residence gave what was termed a matrimonial domicile. But this view was undoubtedly erroneous as regards dissolution of marriage, although probably correct as regards judicial separation, and the true view is no doubt that indicated with great learning and ability by Lord Watson in a judgment given by him in the privy council in the case of Le Mesurier v. Le Mesurier (1895, App. Cas. 517), that the only true test of jurisdiction for a decree of divorce altering the status of the parties to a marriage is to be found in the domicile of the spouses—that is to say, of the husband, as the domicile of a wife follows that of her husband—at the time of the divorce. Domicile means a person’s permanent home, the place at which he resides with no intention of making his home elsewhere, and, if he leaves it, with the intention of returning to it.
It is now also clearly recognized as the law of England that the English courts will not recognize a divorce purporting to be made by a foreign tribunal with regard to persons domiciled in England. For a considerable time doubt appears to have clouded the law on this subject. In a famous case known as Lolley’s case, decided in 1812, the judges of England (the point arose in connexion with a criminal charge) unanimously held “that no sentence or act of any foreign country or any state could dissolve an English marriage a vinculo matrimonii for grounds on which it was not liable to be dissolved a vinculo matrimonii in England.”
This case has been frequently understood as deciding that a marriage celebrated in England cannot be dissolved elsewhere, and on this point the courts of Scotland differ from the view supposed to be taken by the English judges. But the matter has been fully explained in one of the most masterly of Lord Hannen’s judgments (Harvey v. Fairnie, 5. P. D. 154), afterwards upheld by the House of Lords in 1882 (8 App. Cas. 43); and it is now clear that while the parties are domiciled in this country no decree of any foreign court dissolving their marriage will be recognized here, unless it proceed on the grounds on which a divorce may be obtained in this country, and even the exception just mentioned appears to rest rather on reasoning and principle than on the authority of any decided case. This principle received the highest sanction in the prosecution of Earl Russell for bigamy before the House of Lords (1901), in which it was held that, where a divorce had been refused him in England, an American divorce would not relieve a man from the guilt of marrying again.
Summary Proceedings for Separation
The legislature has sought to extend the relief afforded by the courts in matrimonial causes by a procedure fairly to be considered within the reach of all classes. (1) For more information, click here.
Resources
Notes and References
- Encyclopedia Britannica (1911)