Playing the Blame Game: Divorce Then and Now
When Parliament was suspended this September, several bills making their way through the Commons and Lords were dropped. Although three pieces of legislation were carried over to the next session, the remainder fell into a legal limbo, with their only hope of resurrection being that the government would choose to re-introduce them upon the return of Parliament. One such bill lost in the Brexit shuffle is a reform of the divorce laws of England and Wales, which at the moment demand that couples provide evidence of ‘unreasonable behaviour’ or years of separation before a divorce can be granted, even if both parties have amicably agreed to end their marriage. Put simply, the proposed legislation aims to establish ‘no-fault divorce’, in which neither partner need be apportioned blame for the failure of the marriage. Under the Matrimonial Causes Act of 1973 currently in force, those seeking a divorce must prove their partner was at fault through adultery, desertion, or unreasonable behaviour. If there is no evidence of fault, consenting couples still must live apart for two years before they can file for divorce, while cases in which both sides cannot reach agreement must endure five years of separation.
The argument put forward by reformers is that these antiquated laws lead to increased family conflict, with Justice Secretary David Gauke announcing his firm belief that ‘now is the right time to end this unnecessary blame game for good.’ It is important to recognise that this ‘unnecessary blame game’ is not a modern phenomenon, though, with the first divorce in England taking place in 1670 (despite the popular mnemonic for the fates of King Henry VIII’s wives, the fickle ruler did not actually divorce any of them, but rather received religious annulments). With the first divorce laws not enacted until 1857, however, these earlier dissolutions were achieved by private Acts of Parliament, which made them incredibly expensive and unattainable for most people. Until the twentieth century, adultery also remained the only grounds for divorce in England, and proving it required evidence and witnesses.
Of course, there were ways for couples to skirt these regulations. Society couple Diana and Bryan Guinness divorced in 1932 after she began a romance with Oswald Mosely, leader of the British Union of Fascists. Although Bryan ‘behaved like a gentleman’ and offered fake evidence of infidelity on his own part so that Diana’s reputation would not be dragged through the mud in court, she still had to keep her relationship with Mosely secret, lest she and Bryan be charged with ‘collusion’ by the King’s Proctor, a solicitor representing the Crown who could intervene in divorce suits for the purpose of proving collusion between the parties. The courts were obliged to deny the petition for divorce if there was a suspicion that it had been arranged, and evidence of an affair by the petitioner in the year after a divorce was granted could also render the divorce invalid. ‘The King’s Proctor haunted us all’, wrote Diana.
While 2019 might turn out to be a significant moment for divorce law reform in England and Wales, it also marks 150 years since one of the most scandalous divorce cases to ever be tried in Britain: that of Sir Charles and Lady Mordaunt. The Mordaunt case, which reached the courts in February 1869, highlights the adversarial nature of divorce that still forms the basis of our modern legal code. Sir Charles petitioned for divorce on the basis that his wife, Harriet, had committed adultery with three men: Viscount Cole, Sir Frederick Johnstone, and ‘some person’ who was not named, but was later confirmed to be the Prince of Wales. Sir Charles eventually gained his divorce in 1875 on the basis of his wife’s adultery with Viscount Cole, after Cole failed to contest the action. The future King Edward VII had his letters to Lady Mordaunt published in the newspapers, and even briefly testified as a witness about their relationship (which he claimed was purely platonic) in one of the very few historical instances of a member of the royal family appearing in court.
The endings of most marriages are not quite so dramatic as the Mordaunts’, and few separating couples today live in fear of the King’s (or Queen’s) Proctor. However, the persistence of fault-based divorce law in England and Wales continues to vest the process with a level of potential acrimony and bitterness that seems not so far removed from the historical past after all.
 Ministry of Justice (press release), ‘New divorce law to end the blame game’, Gov.uk, 9 April 2019, https://www.gov.uk/government/news/new-divorce-law-to-end-the-blame-game (accessed 9 October 2019).
 O Bowcott, ‘No-fault divorce to become law’, Guardian, 8 February 2019, https://www.theguardian.com/lifeandstyle/2019/feb/08/no-fault-divorce-to-become-the-law (accessed 9 October 2019).
 Bowcott, ‘No-fault divorce to become law’.
 Ministry of Justice, ‘New divorce law to end the blame game’.
 A. Horstman, Victorian Divorce (London: Croom Helm, 1985), p. 1.
 R. Phillips, Putting Asunder: A history of divorce in Western Society (Cambridge: Cambridge University Press, 1988), p. 403.
 M.S. Lovell, The Mitford Girls: The Biography of an Extraordinary Family (London: Little, Brown, 2001), pp. 153-4.
 ‘Mordaunt V. Mordaunt, Cole, And Johnstone’, Times, 11 February 1870, p. 10.
Featured image: Harriet Mordaunt, Wikimedia Commons.