VANESSA FOX: From Henry VIII to 'holy' deadlock
WHEN it comes to divorce Henry VIII could be considered an expert -or certainly a 'frequent flyer'. It could be argued that in England he started the whole thing off, with an approach that was certainly unconventional.
As school children will tell you when they've 'done' the Tudors, the sequence goes 'divorced, beheaded, died, divorced, beheaded survived'.
The subtleties and nuances of that sequence are quite understandably not always covered, including the fact that Henry broke just about every rule in the book to make matrimony work for him and then made up a whole new rule book, that included making himself head of the Church.
Adultery for the King's wife was – proven or otherwise – rather conveniently for him, an act of treason, but the concept of divorce as we know it today was still centuries away.
At the end of the 17th century the future King George I of England divorced his wife Sophia Dorothea on the grounds of (unproven) adultery and then kept her imprisoned for the last thirty years of her life for good measure.
It wasn't until 1857 and the Matrimonial Causes Act that a legal route to divorce started to become part of our culture.
It still wasn't an easy or accessible road to take for many decades. In 1934 the satirical novel Holy Deadlock, written by law reformer and Member of Parliament AP Herbert was published, and became part of a popular debate at the time that called for the law to allow divorce without having to prove adultery.
In the 1930s when husbands wanted a divorce the undignified and farcical process often involved a private detective who would then bear witness in court to finding party A or B in 'an 'otel room m'lord' with the 'guilty party' – often an actress who was paid to play the part of the co- respondent. This went on until the law was changed in 1937.
Scandal and divorce were often paired together – particularly where public figures and celebrities were concerned. Divorced wives often lost all contact with their children due to the shame connected with their status.
In 1969 the Divorce Reform Act, dubbed the 'Casanova's Charter' by one member of the House of Lords at the time, consolidated the Matrimonial Causes Act.
These reforms ushered in the relatively modern era of divorce on the ground of 'irretrievable breakdown', which has to be based on five 'facts' which are defined as: adultery, behaviour, desertion, two years separation and consent or five years separation with no consent. Many people think that irretrievable breakdown is a ground in itself but unfortunately we still have to show a ground for that breakdown, taken from that list.
The main ground currently used is still the unreasonable behaviour of the other party.
This can be a difficult ground to use, as often the Petitioner bringing the proceedings doesn't want to set out in their petition the worst behaviour that they have had to live with over the years, as they don't want to upset the applecart or create tensions with financial or children issues - but the court still needs to see evidence of reasonably bad behaviour in order to justify a ground for divorce.
Many separating spouses don't realise that adultery is still adultery if you have separated – as long as you are still married it is adultery! A sexual relationship with someone else is not adultery if you or the other party is involved with a member of the same sex – though that can be included under the behaviour ground.
The law currently does not permit divorce proceedings to be started until a year has passed since the date of marriage.
This divorce law, though apparently revolutionary in 1969, is now very antiquated and definitely needs reform.
What do you think? Add your comment below.
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Thursday 24 May 2012
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