Matrimonial Causes Act 1857

Background

Before the Act, divorce was governed by the ecclesiastical Court of Arches and the canon law of the Church of England. As such, it was not administered by the barristers who practised in the common law courts but by the "advocates" and "proctors" who practised civil law from Doctors' Commons, adding to the obscurity of the proceedings. Divorce allowing remarriage was de facto restricted to the very wealthy, as it demanded either a complex annulment process or a private bill, either at great cost. The latter entailed sometimes lengthy debates about a couple's intimate marital relationship in public in the House of Commons.

A bill to create a civil court to regulate divorce and to allow it to proceed by ordinary civil litigation had been proposed by Lord Aberdeen's coalition but had made no progress. The procedure had largely been designed by Lord Chief Justice Lord Campbell. When Lord Palmerston came to power in 1855, the bill was relaunched. The bill was introduced in the House of Lords and supported by Archbishop of Canterbury John Bird Sumner and the usually conservative Henry Phillpotts, Bishop of Exeter.

The bill proved controversial, raising particular opposition from future Liberal Party leader William Ewart Gladstone, who saw it as an usurpation of the authority of the Church, and from Bishop of Oxford Samuel Wilberforce. Palmerston eventually steered the bill through Parliament, despite Gladstone's attempted filibuster.

The Act

The Act created a new Court of Divorce and Matrimonial Causes and gave it jurisdiction to hear and decide civil actions for divorce. Further, it gave rights of audience both to common law barristers and civil law advocates, removing the advocates' previous monopoly in divorce proceedings. It abolished adultery as a criminal offence.

It came into force on 1 January 1858.

Differential gender treatment

The Act explicitly made divorce easier for men than for women: a husband could petition for divorce on the sole grounds that his wife had committed adultery; whereas a wife could only hope for a divorce based on adultery combined with other offenses such as incest, cruelty, bigamy, desertion, etc., or based on cruelty alone.

The Act allowed legal separation by either husband or wife on grounds of adultery, cruelty, or desertion.

The Act also required that a suit by a husband for adultery name the adulterer as a co-respondent, whereas this was not required in a suit by a wife.

In England and Wales

Such a court would require sensitive but firm supervision and Palmerston appointed Sir Cresswell Cresswell as its first judge-in-ordinary with bipartisan support. Cresswell was not an obvious appointment. A mercantile lawyer who had been somewhat diffident as a junior judge in the Court of Common Pleas, Cresswell was a bachelor with a reputation for impatience and a short temper. However, he succeeded superbly in establishing the authority, dignity and efficiency of the new regime.

In the first year of operation of the Act, there were three hundred divorce petitions, as against three in the previous year and there were fears of chaos. Campbell sat in some of the earliest hearings but was afraid that he had created a "Frankenstein". However, Cresswell took a managerial role in regulating the new flood of litigation. He showed great sensitivity in dealing with genuine grievances but upheld the sanctity of marriage and was capable of being severe when necessary. However, he was also instrumental in moving the legal view of divorce from that based on a sacrament to that based on contract. He worked with colossal speed and energy, deciding over one thousand cases in six years, only one of which was reversed on appeal. He achieved some public fame and huge respect, popularly being held as representing the five million married women of Britain.

The Act was also an important enabling step in unifying and rationalising the legal system of England and Wales, a process that was largely effected by the Judicature Acts (1873–1875). It also catalysed the unification of the legal profession. By the abolition of any remaining important role for canon lawyers, it ultimately led to the demise of the Doctors' Commons.

Overseas impact

The Matrimonial Causes Act 1857 also had impact in some of Britain's overseas possessions. The Judicial Committee of the Privy Council held that the Act was part of the local law of the four western provinces of Canada, having been received by those provinces under the doctrine of the reception of English statute law. The Act formed the basis for divorce law in those provinces until the enactment of a uniform Divorce Act by the Parliament of Canada in 1968.