In 1963 the law still denied divorce except to those who could provide evidence sufficient to convince a court of a partner’s adultery or other matrimonial offence. In that year, a determined attempt was made to change the law to allow divorce where a couple had lived apart for at least seven years. The attempt failed. But less than a decade later the Divorce Reform Act 1969 allowed divorceif the parties had lived apart for two years (and both consented) or five years (if one did not consent). How did such a dramatic change come about in what, in this context, seems a remarkably short time? (Castles, 1994)
One answer no doubt lies in what could be called ‘the spirit of the age’. 1963 was, after all, the year in which (according to Philip Larkin) ‘sexual intercourse began’. It was also the year of the so-called Profumo affair in which a Minister of the Crown admitted lying to Parliament about his relationship with a woman; and unprecedented press publicity was given to the surrounding events and rumours. (For example, another Minister was said to indulge in ‘weird sexual practices’ involving his appearing naked–save for a mask–at parties.) Lord Denning’s exhaustive investigation into these matters (concluding that although there had indeed been orgies where guests indulged in ‘sexual activities of a vile and revolting nature’ and that it was true dinner had been served by a naked masked man yet there was not a ‘shred of evidence’ that the man in question was a Minister) did little to calm the fevered atmosphere. In the circumstances, it became increasingly difficult to believe that civilisation would be endangered by allowing the thousands of (often elderly and usually eminently respectable) couples living together in what came to be called ‘stable illicit unions’ to crush the ’empty legal shell’ of an earlier marriage so that they could become in law what they had long been in fact (Castles and Flood, 1991).
Increase in divorce
The massive increase in divorce associated with the two twentieth-century World Wars had been a source of grave anxiety to conventional opinion, which saw in the ‘insidious growth’ in the divorce rate a ‘tendency to take the duties and responsibilities of marriage less seriously than formerly’ and a threat to the ‘whole stability of marriage’ as the ‘basis of a secure and stable family life’. At a somewhat less lofty level, those concerned with the administration of the family justice system became preoccupied with avoiding its collapse under the apparently relentless pressure of dirvorce petitions. 1But even amongst those who firmly believed the ideal of marriage–in particular as a way of providing children the ‘settled and harmonious life on which so much of their future happiness depends’ –to be the traditional union ‘for better for worse, for richer for poorer . . . till death us do part’ there was concern about the lot of the hundred thousand or more people living apart from their legal spouses in stable unions to which the law denied recognition. The impossibility of legalising such relationships against the will of an ‘innocent’ legal spouse denied many men and women (and in particular the children they bore) adequate social and financial protection (Ceschini, 1995).
In 1951 in an attempt to meet this concern, Mrs Eirene White had introduced a Private Member’s Bill into the House of Commons, avowedly intended ‘to deal with marriages in which the spouses have lived separately for seven years, but in which no hitherto recognised ground for divorce exists or in which one partner, having grounds for action, declines to take it and keeps the other partner tied against his or her will, generally for life’. The Bill did this by invoking ‘a new principle, in that it looks to the breakdown of the marriage as the ground for divorce (whilst not prejudicing the right of an injured party to seek divorce under the existing matrimonial offence provisions). This was to be achieved by adding seven years’ separation to the existing grounds for divorce; but divroce was only to be granted on the separation ground if the court was satisfied, first, that there was no reasonable prospect of cohabitation being resumed; and secondly, that a petitioning husband had made adequate provision for his family’s maintenance (Chesnais, 1996).
Everyone who spoke on the Bill conceded that the existing law, particularly by denying the freedom to remarry to those whose marriages were long functionally dead, was capable of causing considerable hardship and unhappiness. But opponents of change claimed that in relieving this unhappiness the Bill would weaken the institution of marriage and thereby produce much more unhappiness in the future (Smith, 2002).
The Labour Government
The Labour Government accepted that the problem of the stable illicit union was a real one. But the Attorney-General suggested that there were many other problems with the marriage laws, that it would be wrong to select one of them and deal with it in isolation, and that the right course would be to set up a Royal Commission to make a comprehensive study of the marriage laws. Although the House of Commons gave a second reading to the White Bill by 131 votes to 60, Mrs White eventually acceded to Government pressure and withdrew her Bill on terms that the Government would set up the Royal Commission it had proposed. In reality, as Lord Chancellor Jowitt told Archbishop Fisher, he had agreed to the Royal Commission ‘in the hope of avoiding (the White Bill] which had given rise to it’ (Clark, 1999).
The Royal Commission, established as one of the last acts of the Attlee Labour Government in September 1951 under the chairmanship of Lord Morton of Henryton was thus a temporising measure of a once traditional kind; and its Report–the fruit of four years’ deliberation –certainly did not satisfy the hopes of those who had seen a Royal Commission as the only chance of getting a real reform of the divorce laws, much less the expressed wish of Archbishop Fisher that a full inquiry would lead to a settlement lasting fifty years (Chester, 1977).
On the main issue of the ground for divorce, the Commission was hopelessly divided. On only one proposition was there any broad agreement. All save one of the Commissioners agreed that the existing (and much criticised) law based on the doctrine of the matrimonial offence should be retained. Nine of the nineteen signatories went further and took an even more conservative view: they rejected the introduction of the doctrine of breakdown of marriage in any form. For this group such a doctrine would inevitably entail recognition of divorce by consent–a change ‘disastrous to the nation’ encouraging people to ‘abandon their marriages on the flimsiest provocation’–whilst divorce simply on the basis of a period of separation ‘would have even more damaging consequences for the institution of marriage . . . it would mean that either spouse would be free to terminate the marriage at pleasure . . . [and] people would enter marriage knowing that no matter what they did or how their partners felt, they could always get free’. For these nine members, the proper function of the law was to give relief where a wrong had been done, not to provide a dignified and honourable means of release from a broken marriage. The matrimonial offence doctrine might indeed be artificial in its application to some cases, but it none the less provided a ‘clear and intelligible principle’; and the ‘external buttress of a system of law ‘ specifying the circumstances in which individuals had the right to seek the dissolution of marriage helped them to strengthen their good impulses and weaken the bad (Smith,1992).
Another nine Commissioners did take a more positive view of reform. This group did not accept that divorce should only be available on proof of a matrimonial offence; and recommended making divorce available when a marriage had broken down irretrievably as demonstrated by the fact that the spouses had lived apart for seven years or more. But five of this group would have refused divorce for separation if either party objected; and even the four prepared to accept separation divorce against the will of one spouse would have insisted on an applicant in such a case demonstrating that the separation was attributable to ‘unreasonable conduct of the other spouse’. Only one member of the Commission, the Scottish judge Lord Walker, was prepared to take his stand on the ground of principle that the law should favour the dissolution of marriages which had indeed broken down, irrespective of the ‘guilt’ or ‘innocence’ of the petitioner; and that divorce should be available to a spouse who had lived apart from the other for at least three years and could establish that the facts and circumstances were such as to make it improbable that an ordinary husband and wife would ever resume cohabitation (Castles, 1994).
Although the (Conservative) Government was sensitive to charges that Royal Commissions were a ‘recognised and timely method of shelving inconvenient questions’ no one, in the light of the divergent views put forward in the Morton Report, could ‘possibly expect’ any government to introduce legislation permitting divorce (even by consent) after a separation of seven years and any kind of official support for legislation permitting a ‘man who had gone off leaving a guiltless wife for seven years [to] come back and divorce her against her will’ seemed even less likely (Smith, 1997).
Not surprisingly, this setback was a bitter disappointment; and the criticisms made of the Morton Report by Professor O. R. McGregor have been influential in creating an enduring and strongly unfavourable perception of the Morton Commission. In McGregor’s view, the Morton Report contributed ‘nothing to our knowledge’; and had proved to be a ‘device for obfuscating a socially urgent but politically inconvenient issue’. It was ( McGregor conceded) a ‘matter of opinion’ whether the Morton Commission was ‘intellectually the worst Royal Commission of the twentieth century’ (although since he thought there could be ‘no dispute that [it] is the most unreadable and confused’ it would seem the competition for the wooden spoon was, in McGregor’s view, not severe) (Simotta, 1995).
This is not the place for a detailed examination of McGregor’s polemic; but subsequent events suggest that at least one of McGregor’s criticisms had touched a sensitive nerve. McGregor claimed that Lord Morton and his colleagues were ‘hostile to the social sciences’, that as a result of their ignorance of evidence which social scientists could have provided–extending, apparently, to ‘actual knowledge of the types of divorce law most likely to promote marital and familial stability’ –the Commission was ‘unable to penetrate to the heart of the problems set before them’. The view that the assistance of social scientists was essential to inquiries became part of the conventional orthodoxy; and, as we shall see, considerable efforts were made to secure a social science input for the group established seven years later by the Archbishop of Canterbury (Peters, 1992).
McGregor also seems to have regarded as a weakness the fact that the Morton Committee–in contrast to the 1912 Gorrell Commission (whose chairman was known to have strong views in favour of divorce law reform, but whose membership also included some known to take a strongly conservative view)–did not include either a representative of the Church on the one hand or any active proponent of reform on the other. It is certainly true that the Government devoted considerable effort to achieving a balanced and impartial membership; but if this was an error it was one which was not repeated. As we shall see, there was no nonsense about impartiality as a criterion in choosing sources of advice in the years leading up to the 1969 reforms (Meisaari-Polsa, 1997).
Whatever may be thought about McGregor’s triumphalist beliefs in the potential of social science research for policy making, in one respect he can be shown to have been plainly wrong. He asserted that it was ‘a safe prediction that divorce reform will take a long, long time’; but in fact, little more than a decade later, the Divorce Reform Act swept the concept of the indissoluble marriage into history. Six years after the Morton Report divorce reform was given another chance. A Bill providing for divorce on the ground of seven years’ separation was brought forward by Mr Leo Abse Mp. The House of Commons gave the Bill a second reading and it passed through its Committee stage. But opponents of separation divorce let it be known that any Bill containing such a provision would be ‘talked out’; and, faced with this ‘formidable opposition’, Abse withdrew the clause adding separation to the grounds for divorce in exchange for an agreement that the other provisions in the Bill (designed to remove obstacles to reconciliation attempts ) would reach the statute book. An attempt in the House of Lords to reinstate the separation divorce provisions also failed (Kooy, 1977).
A significant factor in this apparent further reverse for the cause of reform was the–now much more sophisticated–opposition of the Church, organised behind the scenes with great efficiency by the first holder of the post of Lay Secretary to the Archbishop of Canterbury, Robert Beloe. Beloe–a distinguished educationalist and in that capacity a member of the Morton Commission –had special responsibility for organising episcopal representation in the House of Lords and moved easily and confidently between Lambeth Palace, the Palace of Westminster and Whitehall. It is true that the contents of the Abse Bill at first took Beloe by surprise; but intelligence–on such matters as the religious affiliations and marital status of Cabinet Ministers –was rapidly gathered and put efficiently to use. During the passage of the Abse Bill through the Commons, Beloe took an active part in the efforts to organise MPs opposed to separation divorce. He scrutinised the list of MPs nominated to serve on the Standing Committee considering the Bill (and he appears to have been successful in getting one change made). Finally, he masterminded the publication of a firm statement of the Churches’ opposition to separation divorce (Haskey, 1992).
But Beloe really came into his element when the Abse Bill got to the House of Lords and Lord Silkin and others made a determined attempt to reinstate the clause permitting separation divorce. Beloe’s briefing paper for the Archbishop was prophetically headed ‘How to secure rejection of Mr Abse’s clause’; and to that end he skillfully organised opposition. Ramsey made a speech in the debate uncompromisingly rejecting the proposed addition of seven years’ separation to the existing grounds for divorce, and the Lords defeated the proposal on a division. Beloe appreciated that this could not be the end of the matter. He had been warned by the Permanent Under-Secretary at the Home Office that a Bill providing for separation divorce was almost certain to be introduced by a private member the following session; and he was concerned that the Conservative Party faced with the need to modernise its image in the run-up to a General Election might see divorce reform as one means of doing so (Smith, 1997).
Everyone agreed to be an unsatisfactory law and of not being prepared to face reality in its approach to social questions, while the way in which Abse had been forced to drop the separation divorce provision ‘had given rise to a great deal of anti-clerical feeling’. Against this background, the Church clearly needed to take some action; and the links and understandings established by Beloe during the progress of the Abse Bill became of crucial importance in apparently restoring the Church to its position of influence over policy (Simotta, 1995).
The Church’s Board for Social Responsibility had in fact already initiated ‘conversations’ about the possibility of some alternative basis for divorce, but progress had been slow. This led Beloe to float, at a meeting with senior officials from the Home Office and Lord Chancellor’s Department, the notion that the Archbishop might set on foot a somewhat more formal investigation into marriage and its dissolution; and the suggestion that the Archbishop’s mediation might be aimed at the possibility of ‘substituting for all other grounds the ground that a marriage had come to an end’ emerged. Evidently this was favourably received; and in June the Archbishop announced–albeit in a somewhat low key way –that he had asked ‘some fellow churchmen’ to seek to find a ‘principle at law of breakdown of marriage . . . free from any trace of the idea of consent, which conserved the point that offences and not only wishes are the basis of breakdown, and which was protected by a far more thorough insistence on reconciliation procedure first’ (Peters, 1992).
It is difficult to believe that this announcement brought much cheer to the supporters of divorce reform faced as they were with yet another failure to carry legislation through Parliament, or indeed whether the civil servants who had become involved had any real expectation that the Archbishop’s initiative would bear fruit; but in the event it proved to be of decisive importance in preparing the ground for the 1969 Reforms. The composition of what came to be called the Archbishop’s Group (chaired by Robert Mortimer, Bishop of Exeter was somewhat different from the ‘group of churchmen’ originally envisaged by Ramsey, in part because both the Home Secretary and the Lord Chancellor took an active part in suggesting who should (and who should not) be asked to serve. It is true that membership was confined to those thought to be Christians, but no requirement of religious observance was imposed; and the selection process came to resemble that traditionally conducted in Whitehall trawls of the ‘great and the good’, with ‘slots’ being allocated to particular professions (for example, child psychiatry) and interests (for example, marriage guidance). There was one particular problem: criticism about the lack of social science expertise in the Morton Commission made it seem imperative that a ‘sociologist’ be a member of the Archbishop’s Group; but considerable difficulty was experienced in identifying a sociologist who could be described as a Christian, even in the broadest interpretation of the word. Eventually Professor Donald MacRae accepted an invitation to join the group (Meisaari-Polsa, 1997).
Invitations to join the group were ultimately sent out in January 1964; and the members held their first meeting at the Institute of Advanced Legal Studies on 26 May 1964. It had been decided (after some discussion) to make public the existence and remit of the Group. Ramsey’s letter of invitation to join the Group had made clear the dilemma the Church faced. He and other church leaders were opposed to seven years’ separation as a ground for divorce since if it did not also require consent this would cause great injustice whilst if it did ‘it would undermine the nature of the marriage contract as a life-long intention’. For those reasons it had been right to reject the Abse proposal. But the law remained unsatisfactory ‘not least because there is often recourse to a fictitious planning of matrimonial offences in order to obtain a divorce (Kooy , 1977)’.
How was the Group to resolve the dilemma?
At the outset, Mortimer made it clear that the ultimate objective was to try to put forward proposals ‘which would be acceptable to “humanists” and Christians alike’. The numerous letters he had received touched on (1) the desire of one party to a marriage to be free to legitimise a new union and its issue and the reluctance of the other party to permit this; (2) the general ignorance of and impatience with legal procedures, particularly those which submit an undefending spouse to hearing unexpectedly the material facts alleged against him without opportunity to reply; (3) the difficulty of obtaining payment of maintenance without burdensome and costly visits to court; (4) the fear that divorce for separation might endanger ‘general acceptance of marriage as a life long contract’ (Haskey, 1992).
The Group met on eighteen occasions between May 1964 and March 1966, and considered an impressive body of evidence from some distinguished and expert witnesses. It did not take long for it to reach a consensus. The law as it stood was universally agreed to be unsatisfactory; and there was a strong prima-facie case for the substitution of irretrievable breakdown as the sole ground for divorce, replacing the matrimonial offence. The court would have power to dissolve marriage if ‘having regard to the interests of society as well as of those immediately affected by its decision, it judged it wrong to maintain the legal existence of a relationship that was beyond all probability of existing again in fact’.This would involve the court giving a judgment on the state of the marriage; and its decree would no longer be ‘against’ the respondent but rather ‘against’ further legal recognition of the marriage (Haller, 1977).
The Group remained adamantly opposed to divorce by consent: which (as Bishop Mortimer was to say ) was open to the ‘grave, indeed overwhelming objection’ that it would reduce marriage to a purely private contract and would ignore the interest of the community’. Hence, it was to be for the court, representing the community, to decide whether the marriage had indeed irretrievably broken down; and, although the agreement of the parties in wanting a divorce would not be a bar (and might even count in favour of a decree) in no case would such an agreement of itself suffice to effect divorce. It was, for the Archbishop’s Group, essential that the court should always examine the issue of breakdown according to the evidence; and it made it clear that its recommendation for amendment of the substantive law was conditional upon procedural changes to enable the court to conduct the inquest it believed to be necessary into the alleged fact and causes of the death of the marriage relationship and to ‘get to grips with the realities of the matrimonial relationship’ instead of having–as it thought was the case under the offence based law–to ‘concentrate on superficialities’ (Gray, 1998).
The Group refused to accept that any of the well-rehearsed objections to the breakdown principle outweighed its advantages. No doubt (the Group accepted) critics would point to the economic deprivation caused by divorce; but the solution to that lay primarily in reforms of the law of property, pensions (a topic much discussed) and insurance. The Group was correct in its prophesy–indeed, the problem of pensions after divorce remains a source of difficulty more than thirty years later–but it did not see it as part of its remit to prescribe detailed remedies for these problems (Graham-Siegenthaler, 1989).
What of the objection that breakdown divorce would allow the guilty to take advantage of their own wrong? The Group thought that the court’s judgment could and should be seen as the recognition of a state of affairs and a consequent redefinition of status (rather than as a verdict of guilty after a law suit), and for that reason the maxim would have no general application. But even so, the Group accepted the need for a safeguard–in the form of an absolute bar on divorce–in cases in which to grant a divorce would be outweighed by other considerations of fundamental importance such as the public interest in justice and in protecting the institution of marriage (Goode, 1993).
On one matter in particular the Group was adamant: the doctrine of breakdown was an alternative to divorce founded on the matrimonial offence–the lesser of two evils. On no account should breakdown be introduced into the existing law in the form of an additional ground for divorce. Indeed, the Group thought that rather than ‘to inject into [the offence based law]a small but virulent dose of incompatible principle’ it would be better to keep the law based firmly on the matrimonial offence and to consider how the administration of the law could be improved (Glendon, 1989).
The Established Church had traditionally opposed any further erosion of the ‘great principle’ proclaimed by Christ holding marriage to be a ‘life-long obligation terminable only by death with all the sacrifice which such an obligation imposed’; but as long ago as 1937 the Church had come to accept that it was no longer possible to impose ‘the full Christian standard by law on a largely non-Christian population’. On that basis, Putting Asunder at the outset drew a distinction to which it attached great importance. How ‘the doctrine of Christ concerning marriage should be interpreted and applied within the Christian Church is one question: what the Church ought to say and do about secular laws of marriage and divorce is another question altogether . . . Our own terms of reference make it abundantly clear that our business is with the second question only.’ Hence (as the Observer newspaper put it) the Report was not in any sense ‘another theological tract written by theologians for the Church’s communicants’. (Glendon, 1987)
The Commission accordingly produced a Paper, which was discussed at a meeting with Representatives of the Archbishop’s Group on 17 February 1966. Mortimer insisted that any presumption of breakdown arising from the various ‘fact’ situations enumerated by the Commission should be capable of being rebutted in order to avoid any suggestion that the matrimonial offence was to be preserved under another name; and he repeatedly emphasised the need to ensure the effectiveness of the various safeguards proposed by the Group. However, the two sides agreed that ‘there appeared to be no difference in principle between the Group and the Commission’; and the Commission redrafted its paper to reflect those discussions (Fisher, 1992).
In the meantime, opinion was being prepared for a breakthrough. The Lord Chancellor announced that the gap between the two bodies was being narrowed; and the Church Assembly on 16 February 1967–after an important debate in the course of which Professor J. N. D. Anderson warned of the mounting and increasingly broadly based demand for reform which he thought it would be disastrous for the Church to ignore –resolved to welcome Putting Asunder (Federkeil, 1997).
Eventually on 2 June 1967the terms of the agreement between the Archbishop’s Group and the Law Commission were finalised and in due course published: irretrievable breakdown was to be the sole ground for divorce, but there should be no detailed inquest. Rather, breakdown was to be inferred, either from one of several specified facts askin to the traditional matrimonial offences or from the fact that the parties had lived apart for two years if the respondent consented to divorce or for five years if there were no consent. Mortimer had insisted on one alteration to what had been intended as the final draft–‘namely that the power to refuse a Decree where the Court thinks that in the circumstances it would be wrong to do so, shall be mandatory and not permissive.’ This amendment was duly made (whereas various other requests by the Group were not accepted by the Commission) (Friedberg, 1998).
But all this was too late to influence events. On 12 October the Cabinet accepted Gardiner’s advice that a Bill to give effect to the concordat should be drafted by Parliamentary Counsel in the Law Commission and handed to a private member. The Government was to remain neutral on the merits of the Bill but would consider making government time available for the Bill ‘in the light of the degree of support shown for it on Second Reading’. The Law Commission settled Instructions to Parliamentary Counsel, and on 29 November the House of Commons ordered the Divorce Reform Bill presented by Mr William Wilson MP to be printed. Although there was inadequate parliamentary time for the Wilson Bill to get onto the statute book the Bill was taken over by another private member, Mr Alec Jones, and received the Royal Assent on 22 October 1969 (Ermisch, 1993).
As has long been recognised, the publication of Putting Asunder played an important part in facilitating the reform of the divorce law effected by the Divorce Reform Act 1969–not least influencing what has been described as the ‘quite remarkable’ consensus on the broad lines of reform–and Putting Asunder certainly had a decisive influence on the form which the legislation took. But how far did that Act truly give effect to the principles upon which the Archbishop’s Group founded their support for reform? (Council of Europe, 1998).
First, the Group was adamant that irretrievable breakdown should be the only ground for divorce; and it is true that the Divorce Reform Act 1969 provided that the sole ground upon which a petition could be based was that the marriage had broken down irretrievably. But it soon became clear that this ringing assertion was little more than verbiage. However clear it might be that the marriage had broken down, the court could not dissolve it unless the petitioner could establish adultery, behaviour, desertion, or a period of living apart; and if any of those ‘facts’ could be established the court was bound to dissolve the marriage unless the respondent could discharge the almost impossible task of satisfying the court that the marriage had not broken down. There is no reported instance of a respondent succeeding in so doing; and Mortimer’s assumption that the evidence of breakdown would be rebuttable rather than conclusive has been demonstrably falsified. The reality is that the effective ground for divorce under the 1969 Act was not breakdown at all but rather the three matrimonial offences referred to above and separation for the prescribed period: Anderson’s gloomy prophesy turned out to have been well founded. The ‘remarkable consensus’ was obtained by concealing the truth (Commaille, J., et al, 1983).
Moreover, experience soon showed that the divorcing population wanted the speedy divorce which could be obtained on the basis of an allegation of adultery or behaviour, and more than three-quarters of all divorces were granted in that way. This tendency was reinforced in 1977 when court hearings of divorce petitions were effectively abandoned. Far from burying the matrimonial offence, the reforming legislation ensured that it not only survived but flourished (Clark, 1999).
Secondly, the Group was adamant that there should be no divorce by consent. The parties might indeed consent to the dissolution of their marriage but this was only to be brought about by court order after appropriate inquiry. Divorce was not only to remain the act of the court, rather than that of the parties; but it was central to the Group’s thinking that the Court should first satisfy itself by inquiry that the marriage had truly broken down and (as Mortimer put it in the final debate) ‘the courts must take seriously their duty to enquire into all the facts alleged and to be quite sure that they are satisfied that the marriage has irretrievably broken down’. But in fact the court hearings under the Divorce Reform Act were rarely more than a perfunctory formality; and even the formality was effectively abolished in 1977. Yet again, the legislation failed to give effect to the policy on which Putting Asunder had been founded. Those responsible for formulating the concordat must have known that there would in practice rarely if ever be any inquiry into breakdown; but, unsurprisingly, they chose not to disabuse Mortimer and his colleagues of their belief that the court would carry out an inquest, at least in cases of doubt (Coase, 1960).
Finally, the Group consistently insisted on the need for safeguards–both of the interests of vulnerable members of the family and of the public interest in upholding the institution of marriage.