English divorce law has undergone significant reform over the past half century. Social values have changed but the law over this period has remained one step behind until recently. Fifty Years of the Divorce Reform Act 1969 is an edited book collection that commemorates the fiftieth anniversary of the Divorce Reform Act 1969. The Act commenced operation in 1971 and introduced the irretrievable breakdown of marriage as the sole ground of divorce. However, this ground had to be established by proving one of five facts, including adultery, unreasonable behaviour, desertion of at least two years, separation of at least two years with the consent of the respondent, and separation of at least five years without consent. The separation facts effectively operated as no-fault grounds, whereas the facts of desertion, unreasonable behaviour and adultery were the vestigial remnants of the erstwhile fault based system that can be traced to the Matrimonial Causes Act 1937 and the Matrimonial Causes Act 1857.
The book begins with a foreword from Lady Hale, the quondam President of the Supreme Court of the United Kingdom. She shares anecdotes from her long and distinguished legal career, where she reflects on the changes to divorce law. Interestingly, Lady Hale provides extrajudicial opinions of the Supreme Court case Owens v Owens [2018] UKSC 41, where she rejected the appeal that sought to set aside the dismissal of the appellant's divorce petition. She concedes in retrospect that the Supreme Court missed an opportunity to declare that the divorce law at the time was incompatible with human rights based on the European Convention on Human Rights (ECHR) (p. viii). The decision of Lady Hale in this case made legal history but it is rare for a judge to acknowledge a mea cupla. The book is a timely publication with the recent enactment of the Divorce, Dissolution and Separation Act 2020 and its commencement this year.
The book is logically structured into four parts based on chronological order. Part I is an introduction to the topic, Part II provides a background to the law of divorce prior to the commencement of the Divorce Reform Act 1969, Part III explores the operation of the Act over 50 years, and Part IV explores contemporary issues and ongoing challenges. The editors have chosen to present an interdisciplinary collection, including authors in the fields of law, history, film studies, literature, demographics and sociology, rather than just legal historians. This is a conscious decision based on the idea of writing a legal biography of the Act (p. 5). The idea is to personify the law as a living thing with a life story. This is an innovative approach, which allows for the exploration of not only the legal history but also the relevant contextual topics that inform the law of divorce.
Part I is divided into two chapters. Chapter 1 is written by the editors and introduces the book and the Divorce Reform Act 1969. The aim of the book is to explore the legal change from petitioning for divorce based on matrimonial offence to the breakdown principle (p. 6). A brief overview of the history of English divorce law is presented spanning the English Reformation in the 16th century to the 2010s. This covers familiar territory in the existing scholarship. The editors argue that there was a shift in procedure from a public to a private process as a result of the Act. This is consistent with the view of John Eekeelar in Family Law and Personal Life (Oxford 2017) who argued that there was a shift from the regulation to the regularisation of divorce during this period of law reform. The emphasis on legal biography is apposite as the Act has a birth in its enactment, a life journey in the operation of Act, and a death with the enactment of the Divorce, Dissolution and Separation Act 2020. Chapter 2 is written by John Haskey, who provides an analysis of the statistical trends in divorce over the past 50 years. The chapter provides an interesting and insightful examination into changes in facts proven in petitions for divorce. The line graphs in the chapter provide a useful visual illustration of divorce trends, such as the facts proven for divorce petitions between husbands and wives. Haskey reveals that wives petitioned for divorce in greater numbers than husbands, and divorce petitioners were more likely to be granted on fault facts. Interpreting quantitative data and extrapolating legal meaning can sometimes be tricky, such as social historian Lawrence Stone making overgeneralisations about the nature of male sexuality by misusing divorce statistics in Road to Divorce: England 1530–1987 (Oxford 1990). Haskey thankfully presents a measured analysis of the practical operation of divorce law that is justified in his use of the statistics.
Part II provides a background to the Divorce Reform Act 1969. The authors explore the campaign for divorce law reform in the mid-twentieth century. In Chapter 3, James Brown explores how British films conveyed popular perceptions towards divorce and the law between the 1930s and 1955. There are images from the films discussed in the chapter that provide a helpful visual illustration and complements the film analysis. Brown argues that the films in this period represent a dynamic impasse with directors and scriptwriters presenting an alternative perspective to challenge the mainstream stigma attached to divorce. Although the law remained static after the introduction of the Matrimonial Causes Act 1937, Brown makes a persuasive argument that the films featuring the topic of divorce, most notably Brief Encounter (1945), implicitly criticise the nature of divorce law (p. 64). Rosemary Auchmuty writes about the intersection between feminism and property in the divorce law reform debates in Chapter 4. Auchmuty considers the historiographical issues in the history of English divorce law. She justifiably criticises the social history of Lawrence Stone for conflating the Married Women's Association and the Mother's Union as having the same objectives, despite the fact they each had different aims (pp. 75–6). However, her praise of feminist historian Dorothy Stetson's A Woman's Issue: The Politics of Family Law Reform in England (Westport 1982) is overstated. As Auchmuty acknowledges, the scholarship of both social and feminist historians “are weak on legal detail” (p. 76). It is not necessary to accept Auchmuty's radical feminist perspective in the chapter to appreciate her novel writings on the divorce law reform campaign of the 1960s. The inextricable link between divorce law reform and married women property rights is important in appreciating the nature of legal change and accentuates the value of feminist legal history.
In Chapter 5, Rosie Sinclair examines the 1966 Church of England report Putting Asunder: A Divorce Law for Contemporary Society. Sinclair offers a fresh and incisive analysis that provides more depth to the religious aspects of the Putting Asunder report compared to Stephen Cretney's Law, Law Reform and the Family (Oxford 1998). Sinclair argues that it is an oversimplification to describe Putting Asunder as representing a homogenous Anglican viewpoint (p. 106). The recommendation of Putting Asunder that divorce should shift from matrimonial offence to irretrievable breakdown was pragmatic and reflected the evolving views of the Church of England. In Chapter 6, Sharon Thompson presents an alternative perspective on the role that House of Lords peer Edith Summerskill played during the parliamentary debates on the Divorce Reform Act 1969. Summerskill has been portrayed by some feminist historians as being anti-feminist due to her opposition to the Act. Thompson presents a counter-narrative that Summerskill was actually an advocate for the rights of married women. The chapter is well written and Thompson provides archival material, interviews with Summerskill's relatives and textual legal analysis of Hansard to make a compelling argument that Summerskill was genuinely concerned the Act would be a “Casanova's Charter” and lead to older husbands divorcing their wives for younger women.
Part III is focused on the operation of the Divorce Reform Act 1969 over its lifetime of 50 years. Rebecca Probert considers the literary depictions of divorce between 1971 and 2021 in Chapter 7. The chapter provides an interesting account on popular cultural portrayals of the shift towards irretrievable breakdown of marriage as the basis of divorce. The biggest change identified by Probert in the works of fiction is the move away from courtroom dramas to lawyers dispensing legal advice to clients (p. 145). Probert provides a thoughtful argument that the English novels reveal the acceptance of divorce in the wider English consciousness, even if the novelists overstate the ubiquity of divorce. In Chapter 8, Joanna Miles explores the legal interpretation of the behaviour fact that was used as part of divorce petition. Miles traces the legal change from the historical divorce ground of cruelty to the behaviour fact, and argues that this demonstrates that judges have consistently had to form opinions about the nature of marriage. The chapter provides a fascinating analysis of the interaction between the media and the law with the helpful inclusion of newspaper extracts. In particular, Miles examines the sensational reaction of the tabloid press to Mason v Mason (1980) 11 Family Law 143, a divorce case about whether the infrequency of sexual intercourse could be used to demonstrate unreasonable behaviour.
Liz Trinder explores the construction of divorce narratives by analysing 300 statements of cases in undefended matters in Chapter 9. The chapter provides an interesting analysis of the semiotics of divorce law by deconstructing how parties portray the breakdown of their marriages to the court. Trinder argues that behaviour statements were crafted as habitual narratives rather than story narratives, because the former helped to highlight the deteriorating quality of the marriage that could satisfy the perfunctory purpose of the divorce petition. The study of language and its role in the creation of legal narratives provides an insightful analysis of the legal process. In Chapter 10, Daniel Monk examines the modern history of royal divorces. Royal divorce has been inextricably linked with public perceptions of marriage and the institution of monarchy. Monk traces the changes in how the royal family have responded to separation and divorce among its own ranks and how that has shifted with the changes in the English doxa. The chapter adopts a critical legal perspective with a psychological analysis of the perception of divorce in the public consciousness that has manifested in various forms, including in the television show The Crown (2016–), the cultural iconography of Princess Diana and other portrayals in the popular media.
Part IV considers contemporary perspectives and challenges to contemporary English divorce law, especially with the end of the Divorce Reform Act 1969. Chapter 11 is authored by Carmen Draghici and she compares English divorce law and the ECHR. The chapter criticises the failure of the Matrimonial Causes Act 1973 and the English judiciary to promote the right to marry in the ECHR. In particular, Draghici criticises the existence of the five-year separation requirement for divorce as inconsistent with Strasbourg jurisprudence. Although Draghici is right in arguing that marriage is not only a private contract (p. 225), the civil nature of marriage in the English legal context is largely overlooked which diminishes the analysis. Samia Bano examines the role of informal divorce practices in British Muslim communities and how this has created tension with English family law (Chapter 12). The law and religion conundrum is thoughtfully considered with a critical analysis of the limitations of legal formalism in recognising the divorce practices of religious minorities, but also the problems with parties evading the family justice system and relying on religious tribunals. Bano offers a valuable analysis of the issues that continue to arise in contemporary English family law. Chapter 13 considers the changing practices of commitment and separation in England and Wales from a sociological perspective. The authors Brian Heaphy and James Hodgson explore both heterosexual and same-sex couples and their experiences with marriage, divorce and the law. The chapter reveals fascinating trends in the changing practices of commitment. Heaphy and Hodgson argue that divorce is no longer strictly viewed as a failure by society but as an ordinary experience. Moreover, the authors argue that there is an emerging convergence of divorce experiences between heterosexual and same-sex couples, especially as a result of the laws of England recognising both of these forms of relationships as marriages and civil partnerships.
In the afterword, John Eekeelar presents a coda to the book in the form of his reflections to the legal changes to divorce over the past few decades. Eekeelar views the legal history from the perspective of power. The power to divorce has shifted from the family justice system to the parties with the fall of the Divorce Reform Act 1969 and the rise of Divorce, Dissolution and Separation Act 2020 (p. 287). Despite the law reform, power imbalances will continue to permeate in other areas of family law, but it will not manifest in the law of divorce, at least not to the same extent as it has in the past. Fifty Years of the Divorce Reform Act 1969 presents a rich collection of writings that has provided an excellent legal biography of the past half century of English divorce law.
