Adultery, Equality and Children’s Welfare

Summary

1. INTRODUCTION

At the end of the long process of divorce law reform, it is intriguing to look back at judicial attitudes which, however incomprehensible to us, lingered on surprisingly recently.

Brief summaries of the Victorian legacy, and of the impact of the First World War, provide the introduction to an account of the Probate, Divorce and Admiralty Division (PDA) during the long, unadventurous and stultifying Presidencies of Lord Merrivale (1919 – 1933) and Lord Merriman (1933 – 1962). There is a comparison, unflattering to the judges of the PDA, between their approach and that of the King’s Bench judges (McCardie J., in particular), who sat from time to time in the PDA, as well as hearing divorce cases on circuit. If the verdict is harsh, it is unhappily borne out by an examination of how the married woman was treated between the wars, both in relation to her husband, and in relation to her children. It is not a pretty picture, as demonstrated by four examples: the wife’s duties of obedience and submission; the institutionalised discrimination between the sexes; the perceived link between illegitimacy and immorality; and the approach to child custody.

2. THE LEGACY OF VICTORIAN FAMILY LAW

English family law – not that there was such a thing – at the end of the First World War was surprisingly little changed from the legacy bequeathed by the Victorians to the Edwardians. What went on in the PDA would have been familiar to the Victorians. Victorian family law was founded on two great principles.

First, the relationship of the husband and the wife within marriage was fundamentally unequal. The wife’s duty of’submission’ and ‘obedience’ to her husband was central to the Victorian concept of marriage, given canonical expression by Sir James Hannen P. in his definition of the essence of marriage in Durham v. Durham : ‘protection on the part of the man, and submission on the part of the woman’. This inequality was underscored by the notorious ‘double standard’ enshrined in the Matrimonial Causes Act 1857. Whereas a husband could divorce his wife for simple adultery, a wife could not divorce her husband unless she could prove either what might be described as aggravated adultery or, in the alternative, sodomy or bestiality.