From Wives For Sale to Wikivorce : Part 2
24 May 2013
From Wives For Sale to Wikivorce : Part 2
By Bridget Garrood, resident of St Leonard’s and a Partner of Cartridges Solicitors, Exeter. Article as published in the St Leonard’s Neighbourhood Newsletter – May/June 2013
In 1855, the happily married Queen Victoria received a long and impassioned letter in support of the right to divorce. The letter was written as part of an intense campaign by the author and social reformer Caroline Norton, who directed the Queen’s attention to the scale of legal ignorance amongst unhappily married Victorians:
“Since the days of King Henry VIII, for whose passions it was contrived, our method of divorce has remained an indulgence sacred to the aristocracy of England. The poorer classes have no form of divorce amongst them, for nothing can exceed the ignorance of the poor on this subject; they believe a Magistrate can divorce them; that an absence of seven years constitutes a nullity of the marriage tie; or that they can give each other reciprocal permission to divorce: and among some of our rural populations, the grosser belief prevails, that a man may legally sell his wife, and so break the bond of union! “
Caroline herself had suffered not only the heartbreak of losing her children upon her separation from her violent husband, but also the indignity of being the scandalous subject of his malicious court case - an unsuccessful claim for damages against the Prime Minister, Lord Melbourne, for “criminal conversation”. Despite its name, this was a civil claim which a deserted husband could bring, alleging adultery against the defendant, and seeking damages for loss of “property rights” in his wife. Despite the Prime Minister’s friendship with Caroline and his part in her story, Lord Melbourne himself failed to support the matrimonial reforms, and is reputed to have been scolded by Queen Victoria for his opposition.
Unfortunately, the crime of Bigamy was a regular side-effect of legal ignorance or desperation amongst the populace, who had no access to divorce at most levels of society. A judicial guide to the prohibitive financial cost and tortuous legal process involved in obtaining a divorce, so accurately characterized by Caroline Norton as an “indulgence sacred to the aristocracy”, had been set out 11 years earlier in an 1844 Assizes Judgement, directed to a bigamous prisoner :
"I will tell you what you ought to have done; ... You ought to have instructed your attorney to bring an action against the seducer of your wife for criminal conversation. That would have cost you about a hundred pounds. When you had obtained judgment for (though not necessarily actually recovered) substantial damages against him, you should have instructed your proctor to sue in the Ecclesiastical courts for a divorce a mensa et thoro. That would have cost you two hundred or three hundred pounds more. When you had obtained a divorce a mensa et thoro, you should have appeared by counsel before the House of Lords in order to obtain a private Act of Parliament for a divorce a vinculo matrimonii which would have rendered you free and legally competent to marry the person whom you have taken on yourself to marry with no such sanction. The Bill might possibly have been opposed in all its stages in both Houses of Parliament, and together you would have had to spend about a thousand or twelve hundred pounds. You will probably tell me that you have never had a thousand farthings of your own in the world; but, prisoner, that makes no difference. Sitting here as an English Judge, it is my duty to tell you that this is not a country in which there is one law for the rich and one for the poor. You will be imprisoned for one day. Since you have been in custody since the commencement of the Assizes you are free to leave."
Both this sympathetic judgement, and Caroline Norton’s campaigning played crucial parts in the eventual enacting of the Matrimonial Causes Act 1857 which made civil divorce relatively accessible for the first time. Interestingly, the controversial bill had been supported in the House of Lords not only by the Archbishop of Canterbury but by "Henry of Exeter", the unpopular Bishop of Exeter whose effigy, on Guy Fawkes night in 1831, complete with ".... hollow turnip as head and candle as nose, clad in mitre and lawn sleeves..." had been burned by an enthusiastic crowd on our Cathedral Green.
The far more popular Caroline Norton modelled for the fresco of Justice in the House of Lords by Daniel Maclise, who chose her because she was seen by many as a famous victim of injustice. Her intense campaigning, also led to Parliament passing the Custody of Infants Act 1839, and the Married Women's Property Act 1870.
In 2013, accessibility to information about divorce is much improved, with the prevalence of plain English guides to divorce, as found in the well-written court service leaflets, available in the lobby of our handsome Exeter Combined Court Centre. The excellent gov.uk website, can also guide people with simple agreed cases through the paper procedure for obtaining an undefended divorce. A Self-Help divorce pack developed by my own firm is already proving a popular choice amongst the “unbundled” fixed-fee options and even the supermarkets are getting in on the DIY divorce act (more specifically - the Legal Services Act 2007 disparagingly dubbed “Tesco Law” by my disgruntled profession).
Unfortunately, despite the plethora of free and low-cost advice on offer, this can be difficult to distinguish from the dangerous quantity of inaccurate 21st century matrimonial folklore. This is passed between bar stool “experts” as too-often overheard in our local hostelries, and leads to the sort of questions raised weekly in my own firm’s free legal surgery. The same questions are echoed on various user-led internet forums despite the best efforts of the more respectable websites, which play a useful role in debunking various urban marriage myths.
The commonest of these in my experience, involves the illusory rights deriving from the persistent fiction of the “common law marriage”. As a Resolution Accredited Family Lawyer, specialising in cohabitation and in pensions on divorce, it falls to me too often to explain to people who believe themselves to have acquired the status of “common law wife” (or husband), that they may have no financial rights whatsoever following separation, let alone the valuable pension-sharing rights available upon divorce.
Smart phone users are also catered for, notably by part of the government’s answer to the withdrawal of Legal Aid as from April Fools Day 2013: for an “Action Plan” simply download the “easy-to- use web app: Sorting Out Separation” as launched in 2012 on established websites such as wikivorce.com and relate.org.uk , which campaigns to see relationship support at the heart of the social justice agenda. Wikivorce is the self-proclaimed “world’s #1 divorce support community” offering free information and advice to “I new visitor to its website every minute”, whilst itself carefully disclaiming that “it cannot be relied upon to provide accurate legal advice and should not be used as an alternative to legal advice from a qualified solicitor”.