By Sara Joy - Law Student @ Downing College, Cambridge
Many scholars describe the law as a mirror that reflects societal norms and conventions. This ought to be true because arguably, a successful legal system depends on the law being largely congruent with the morality generally accepted by the majority in order that members of society may conform to it and so social order will be maintained.
This means as morality changes, frequently the law changes too. Let’s use the example of divorce to explore this concept. Marriage was a church institution and due to the powerful influence of the Church, divorce was widely considered immoral and incredibly hard to obtain before 1700. Even in the 1700s and the early 1800s, divorce was only considered an option for the rich. However, in 1857, The Matrimonial Causes Act was passed and became the first piece of divorce legislation that was made accessible to use for all. Groundbreakingly, the Act abolished Ecclesiastical jurisdiction in matrimonial matters, making secular divorces possible. Although Victorian England was still a period of religious fundamentalism, this part of the act may embody the beginning of a gradual shift toward secular societal morality.
However, the Act still reflected the patriarchal structure of the Victorian era. It allowed legal separation by either partner on the grounds of cruelty, adultery or desertion but did not treat both genders’ rights to divorce equally. A man could request a divorce solely on the grounds of adultery whereas a woman would have to combine this factor with other defences such as incest, bigamy, desertion (or solely cruelty). Additionally, only a husband was entitled to compensation due to his loss of reputation, honour and ‘marital services’.
Yet society was changing and after the First World War large numbers of women who were previously expected to merely be housewives were taking on the jobs of men. This allowed them to gain independence from the men in their lives and in 1923, The Matrimonial Causes Act enabled either partner to petition for divorce solely on the grounds of adultery. The 1937 act provided further grounds for divorce such as cruelty, desertion and incurable insanity.
However, divorce was only allowed after the first three years of marriage suggesting the court’s preference was to stay out of marital affairs until unavoidable. There was a general increase in divorces between 1932-90 but a large spike after the Second World War could also be explained by the fact women were less financially dependent on men but also due to the war causing emotional strain on relationships.
If we are ever to move forward, the law must “affect as well as reflect”. Radically, the Divorce Reform Bill of 1969 enabled either party to petition a divorce only on the basis of the “irretrievable breakdown of the marriage” proven by evidence of either: adultery, “unreasonable behaviour”, desertion or separation for 2 years (with both parties’ consent) or 5 years (without consent of both parties). This marked an important shift in attitudes as it removed the concept of ‘matrimonial offences’ which depicted divorce as a polarising battle between the guilty party and the innocent party. Despite this “Casanova Charter” being critiqued as promoting sexual permissiveness, the resulting act led to a spike in divorce rates, reaching a level more consistent with today’s figures. This may be representative of the important role law plays in the internalising ideas of what is natural and morally ‘right’.
As society ideas of what is right and ‘morally acceptable’ shift and change, the law frequently changes to adapt to new conventions. Further reform to divorce law such as the recognition of same-sex divorce in 2004 reflects this. This is an important characteristic of the law, and this is what allows the law to maintain social order and cohesiveness.
Brief history of divorce law (Cambridge Family Law Practice): http://www.cflp.co.uk/a-brief-history-of-divorce/
Divorce since 1900 (UK Parliament): https://www.parliament.uk/business/publications/research/olympic-britain/housing-and-home-life/split-pairs/
Statistics for the impact of World War II on marriage: https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/articles/victoryineuropedayhowworldwariichangedtheuk/2015-05-08
Kennedy, H. (2019) Misjustice : How British law is failing women. London: Vintage, p. 18
1969 Divorce Reform Bill Lords Sitting: https://api.parliament.uk/historic-hansard/lords/1969/oct/13/divorce-reform-bill