Separation in United Kingdom

History of Separation (Family Law)

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. In 1895 an act was passed which re-enacted in an improved form the provisions of an act of 1878 of similar effect.

By the act of 1895 power was given to a married woman whose husband:

• has been guilty of an aggravated assault upon her within the Offences against the Person Act 1861, or
• convicted on indictment of an assault on her and sentenced to pay a fine of more than £5 or to imprisonment for more than two months, or
• shall have deserted her, or
• been guilty of persistent cruelty to her or wilful neglect to maintain her or her infant children, and by such cruelty or neglect shall have caused her to leave and live apart from him, to apply to a court of summary jurisdiction.

(The latter include) to obtain an order containing all or any of the following provisions:

• that the applicant be not forced to cohabit with her husband,
• that the applicant have the custody of any children under sixteen years of age,
• that the husband pay to her an allowance not exceeding £2 a week.

The act provides that no married woman guilty of adultery should be granted relief, but with the very important proviso, altering as it does the rule of the common law, that the husband has not conduced or connived at, or by wilful neglect or misconduct conduced to, such adultery.

The provisions of this act have been largely put in force, and no doubt to the great advantage of the poorer classes of the community. It is to be noted that by a decision of the court of appeal in Harriman v. Harriman in 1909, where a wife has been deserted by her husband and has obtained a separation order within two years from the time when the desertion commenced, she loses her right to plead desertion under the Matrimonial Causes Act 1857, and is therefore not entitled to a divorce after two years’ desertion, upon proof of adultery. See also Dodd v. Dodd, 1906, 22 T. L. R. 484.

It will be observed that the act is unilateral, and affords no relief to a husband against a wife; and the complaint is often heard that no misconduct of the wife, except adultery, relieves the husband from the necessity of maintaining her and allowing her to share his home, unless he can obtain access to the high court. In 1909 a Royal Commission was appointed to inquire into the law of divorce, with special reference to the position of the poorer classes.

Separation Deeds

Although nothing in the development of the law of divorce has tended to give to married persons the right absolutely to dissolve their marriage by consent, and, on the contrary, any such agreement would be held to be strong evidence of collusion, the view of the Church expressed in the ecclesiastical law has been entirely departed from as regards agreements for separation. Such agreements were embodied in deeds, and usually contained mutual covenants not to sue in the ecclesiastical courts for restitution of conjugal rights. The ecclesiastical 342 courts, however, wholly disregarded such agreements, and considered them as affording no answer to a suit for restitution of conjugal rights.

For a considerable period the court of chancery refused to enforce the covenant in such deeds by restraining the parties from proceeding to the ecclesiastical courts. But at last a memorable judgment of Lord Westbury (1861) asserted the right (Hunt v. Hunt, 4 De G. F. & J. 221; see also Marshall v. Marshall, 5 P. D. 19) of the court of chancery to maintain the claim of good faith in this as in other cases, and restrained a petitioner from suing in the ecclesiastical court contrary to his covenant. Thereafter these deeds became common, and no doubt often afford a solution of matrimonial difficulties of very great value. When the courts of the country became united under the Judicature Acts, it became practicable to set up in the divorce division a separation deed in answer to a suit for restitution of conjugal rights without the necessity of recourse to any other tribunal.(1)

Resources

Notes and References

1. Encyclopedia Britannica (1911)

See Also

Further Reading