As we approach International Women’s Day, it would be tempting to criticise the current situation and outline how much work is still required to achieve equity for women. However, it is also important to look back on how far we have come, particularly in relation to the law on divorce.
Early divorce Law
It was famously Henry VIII and his attempt to annul his marriage to Catherine of Aragon in 1533 which first transformed the law on divorce by transferring the jurisdiction away from the Roman Catholic Church. However, a divorce was still far from common and was rarely actioned. In fact, up until early Victorian times, the only way to achieve a divorce was through an Act of Parliament, leaving many women stuck in loveless and unhappy marriages.
The start of change
Arguably one of the first women’s rights protagonists was Caroline Norton, who married George Chappell Norton MP in 1827. Following a tumultuous relationship, separation occurred and Caroline attempted to provide an income for herself, as a talented writer and poet. However, the law at the time meant a wife’s income belonged solely to her husband, who refused to provide for her. He also made accusations of an affair with Lord Melbourne, the then Prime Minister, which although later thrown out by a Jury, effectively ruined her standing in society.
By this point, he had also denied her access to her children and moved them to Scotland. Again, the Law at the time stated that a mother had no access to her children unless expressly permitted by the father.
In retaliation, Caroline ran up debts and sent creditors to George’s door, but he was able to avoid legal action when it was determined in Court that a woman could not enter into a contract in any event, concluding that the debts were void.
Caroline, distressed at women’s lack of protection under the law, turned to protest and her efforts eventually paved the way for three acts of Parliament: –
- Custody of Infants Act – removing the assumption that children remain with their father on separation;
- The Matrimonial Causes Act 1857 – putting divorce into the Civil Courts;
- The Married Women’s Property Act 1870 – abolished the bar on women owning property, allowed them to earn an income for themselves and could finally inherit property.
Whilst divorce rates rose slightly as a result of these three changes, it was largely still discriminatory for women. Whilst a husband could divorce a wife on the grounds of adultery, a wife also had to prove incest, bigamy, desertion or another offence alongside it and many divorcing wives were awarded no financial provision at all, leaving them destitute.
The beginning of the law we know today
Thankfully, The Married Women’s Property Act was later amended to provide women with full property rights and ultimately laid the foundation for women becoming legal entities in their own right. Further, following women’s suffrage and changes in the post-War era, there was societal pressure to establish a more equal approach to divorce.
The Matrimonial Causes Act 1937 improved financial remedies for women, albeit only to around one third of the entire asset base and even then, that very much depended on who was determined at “fault” for the breakdown of the marriage.
The law today
A pivotal change occurred in 1973 with the new Matrimonial Causes Act, the law which governs divorce in England and Wales today. This Act widened financial provision for women, to ensure that both parties “needs” are met and provided equality in terms of the grounds for divorce.
What followed was a series of case law establishing important principles ensuring equal treatment for women on divorce. For example, the landmark case of White v White established that finances on divorce should be considered by the “yardstick of equality”. Moreover, it has been established that needs can be “generously interpreted” in larger money cases and by the early 2000s, London was firmly considered as the “divorce capital” of the world.
No longer is there discrimination between the stay-at-home parent and the money earner of the relationship, with the law determining that both roles are seen as an equally important contribution to the marriage.
With “No Fault Divorce” being introduced in 2022, these legal changes have meant that England and Wales are now one of the most liberal jurisdictions in the world when it comes to divorce. No longer are women punished for leaving the workforce to care for their children and are instead seen as an equal party to the marriage.
An additional improvement to women’s rights
The groundbreaking case of Radmacher v Granatino in 2010 (in which the wife was the significantly higher earner) saw the Supreme Court embracing pre-nuptial agreements as having “magnetic importance” when determining the financial outcome on divorce. Thereby supporting the autonomy of a spouse to decide how their finances should be divided depending on their set of circumstances.
Conclusion
So, whilst it is right to say that there is still a long way to go to ensure equity for women in all aspects of today’s society, at the very least, and with the help of female protagonists, the law on divorce in England and Wales is not only progressive, but a good blueprint for other jurisdictions to follow.
