The History of family law Flashcards
medieval marrriage and divorce law
england: 2 forms of divorce (derived from the church but difficult to achieve due to it being sacred)
1. vinculo matrimonii- a ruling by the church that a marriage had never been valid (e.g not consummated)
2. mensa et thoro- the couple no longer needed to live together on the grounds of cruelty or adultery
medieval wales- marriage was an aggreement not holy sacrament, divorce by commmon consent
prior the matrimonial causes act 1857
hard to divorce as still governed by the church
alternative was to get a declaration of nullity (the marriage never existed)
grounds for above- no consent (undue pressure/mistake/under 7 then 12/ one had STD),
incapacity (insane, previous marriage, consanguinity, affinity),
not consummated
moss v moss- wife was pregnant by other man, claimed the marriage was mistake
reasons for- shame of divorce, money
Henry v111- marrying his brother wife (affinities)
can still apply for annulments if applied for any time in marriage
void or voidable
void- void from the start (more sever such as under age)
voidable- void from the claim (less serious cases)
other method of divorce before the matrimonial causes act 1857
bringing a private members bill for the individual case
wealthy men could do this
boteler v boteler 1656-75- despite evidence of attacks on wife and children and testimonys, took 3 years for a full seperation
the poor class before the matrimonial and causes act 1857
wife sellng to end unsatisfactory marriages (17th century)
divorce was practically impossible (only for wealthy)
no basis in law but continued
if men abandoned family they ended up in the workhouse
Caroline Norton
1827- her husband treated her cruely and had taken her children and money.
her campaigning resulted in changes in the law
intrduced 3 acts of parliament-
the custody of infants act 1839- allowing mothers custody of children until 7
the matrimonial causes act 1857
the womens property act 1870- allowed women to keep their own money
secular divorce court
campaigning for a secular court to be set up to give an alternative to the church control (nullity)
accepted in the MCA 1857, created the court for divorce and matrimonial cases and abolished churchly jurisdiction
however adultery was only ground available (wives also had to prove cruelty or desertion)
nullity was still available
later tensions between the church and state
the church was resistant to let go of its power over peoples private lives by allowing changes in the law
the church rejected the recommendations of the Royal Commission to equalise rights for both genders in 1914
wasnt until the MCA 1923- made adultery sole grounds for divorce (equalised rights by a private members bill)
1939- the church agrees to widen the grounds to adultery, cruelty, 2 years desertion)
1955- royal commission suggested divorce should be permitted where there the marriage had irretrievably broken down
divorce reform act 1969- brought the above into law, with the addition of proving adultery, unreasonable behaviour, desertion, consent after 2 years/ one party after separtion for 5 years
current law- The matrimonial causes act 1973 (before the 2020 act)
cemented grounds for divorce
marriage has irretrievably broken down through:
adultery
unreasonable behaviour
2 years seperation with consent
2 years desertion
5 yeasr seperation with 1 consent
have to wait 3 years into marriage (now 1 year)
civil partnership act 2004- same sex couples enter CP, since 2014 can marry
analysis of marriage
“replacing marriage with a contractual model.. this would avoid the one sieze fits all model of the current marriage law”- Herring Family law 10th edn
“Rosemary Auchmuty has suggested that marruage has lost so much social and legal significance”- Herring above
“no fault system does not deal with the issues which really concern the parties”- richards 1994 in above book
“there is not much the law can do other than make the legal formalities as painless as possible”- Herring Above
