11 Child & Fam. L. Q. 33 (1999)
The Controversy of Equality and the Matrimonial Causes Act 1923

handle is hein.journals/chilflq11 and id is 35 raw text is: 33

The controversy of equality and the
Matrimonial Causes Act 1923
Rebecca Probert,' University of Wales, Aberystwyth
In 1923 the Matrimonial Causes Act finally gave wives the right to divorce their husbands on
the ground of adultery alone. Before this date the law did not regard a husband's adultery as
sufficiently serious to justify the dissolution of the marriage. A wife had to prove that the
adultery had been aggravated by rape, sodomy, bigamy, incest, bestiality, cruelty or desertion
for two years without reasonable cause.' The breadth of this list was at least an improvement
on the narrow range of factors which had been taken into account prior to 1857, when divorce
was only available by means of a private Act of Parliament. The Campbell Commission noted
in 1853 that a divorce 'cannot be obtained at the suit of the wife, except in cases of aggravated
enormity'.2 Only four women had succeeded in obtaining a divorce under the Parliamentary
procedure and in each of these cases the adulterous husband had also committed either incest,3
bigamy or cruelty.4 By contrast, husbands had been allowed to obtain divorces on the ground of
their wives' adultery since the seventeenth century.'
The fact that the abolition of this double standard by the Matrimonial Causes Act 1923
occurred at a time when women were gaining new civil and political rights has led to it being
grouped with such reforms.' It has thus been assumed that the major motivation for reform was
a new belief in equality between men and women and that its enactment was largely due to the
influence of the women's movement at that time.' However, this perception of the Act
overstates the importance of these two factors. A commitment to equality was not the only
motivating factor for the reform. Moreover, the groundwork for the reform of the double
standard had been established long before it was championed by the women's movement.
A major stimulus for reform was the way in which the double standard itself operated in
practice. The law does not always speak with one voice and, in the second half of the
nineteenth century, the practice of the courts did not always reflect the harshness of the
statutory requirements. The judiciary's interpretation of the grounds for divorce listed in
section 27 of the Divorce and Matrimonial Causes Act 1857 demonstrated considerable
sympathy for the plight of wives. This meant that the impact of the double standard was
reduced in practice, but it also meant that the law became riddled with contradictions. It was
these anomalies and confusions of the law which led to an appreciation of the need for reform.
In order to evaluate the relative importance of these competing influences on the
Matrimonial Causes Act 1923 it is necessary to look beyond the political process which
I would like to thank David Bradley, John Williams and Stephen Cretney for their comments on earlier drafts of
this article. Any errors remaining are of course my own.
Divorce and Matrimonial Causes Act 1857, s 27.
2 First Report of the Commissioners Appointed by Her Majesty to enquire into the Law of Divorce (1853),
Parliamentary Papers, Session 1852-3, vol 40, at p 11.
At this time the concept of incest included sexual intercourse with relatives by affinity. It also meant that a wife
who slept with her husband after he had slept with one of her relatives was herself guilty of incest.
4 Report of the Campbell Commission, op cit, n 2, at pp 15-16. See R. Probert, 'The Double Standard of Morality
in the Divorce and Matrimonial Causes Act 1857' (1999) Anglo-American LR (forthcoming).
s L. Stone, Road to Divorce (Oxford University Press, 1995), at pp 308-322.
6 C. Gibson, Dissolving Wedlock (Routledge, 1994) at p 85.
7 D. M. Stetson, A Woman's Issue: The Politics of Family Law Reform in England (Greenwood Press, 1982), at
chapter 4; C. A. Moyse, 'Reform of Marriage and Divorce Law in England and Wales 1909-37' (unpublished
PhD thesis, Cambridge 1996); M. Freeman, 'Family Values and Family Justice' (1997) 50 CLP 315, at p 332.

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