This week the UK government has announced a cut of £350 million from the legal budget for England and Wales, leading to the withdrawal of support from all cases but those that involve life and liberty. It effectively means that those on low incomes will have no financial support in almost all forms of civil suits. One of the main types of civil suit that will see a withdrawal of funding is divorce. Claimants in divorce cases will no longer be applicable for legal aid, unless it is a case that involves domestic violence.
This is a particularly interesting decision from a government that sees marriage as the cornerstone of a stable society- highlighted in its promises of tax relief for married and civilly-partnered couples that are designed to make marriage more desirable. One might wonder whether the decision to remove legal aid is predicated on the belief that making divorce more difficult to obtain will force people to remain in marriages (so according to this logic making society more stable), or perhaps, the Conservative’s laissez-faire politics only thinks social stability is important when it doesn’t cost money.
Either way, this might be a good time to reflect on the lessons from history. Fortunately for us, the lack of access for divorce for all but those who could afford a private act of parliament until 1857 in England and Wales, and then the subsequent cost of divorce in the divorce courts throughout the nineteenth century has given us ample examples to work with.
The act of legal marriage conveys legal rights and responsibilities upon the couple marrying- most particularly relating to issues of property ownership and inheritance, while a spouse is also the legal default for next of kin. Since the Married Women’s Property Acts and various other pieces of late-nineteenth- and twentieth-century legislation, spouses have shared rights to communal property- although what that is can be greatly disputed- and also authority to make decisions over the other’s life if their right to choose is compromised. In this way, marriage legally, as well as emotionally, tangles people in each other’s lives, and the process of detangle-ing is not straightforward in law as in matters of the heart. The process of legal separation and divorce aids the process of undoing a marriage, by giving legal backing to private decisions over the division of property (or making those decisions for you) as well as confirming the individual’s financial, emotional and legal separation from their now ex-spouse.
Without it, as we can see from cases in the nineteenth century, spouses can walk in and out of each other’s lives for years after separation, removing property at a whim or- because of the continued legal linkage of a couple’s lives- interfering in credit and debt arrangements. While this may now technically be illegal after a separation, because of the legal tie between spouses, it is usually viewed as a civil, rather than criminal matter (but again without legal aid to support a legal suit, this is very difficult to counteract). Without a good, strong will (which also requires a lawyer and money), a spouse can also make claims on inheritance of property after the death of a spouse- and may even be able to legally contest a will depending on the nature of the property. If in an accident, seriously ill or otherwise incapacitated, without clear and explicit instructions to the contrary (which requires a lawyer and so money), an ex-spouse has legal authority to make decisions on medical treatment and even life or death.
This becomes even more complicated when couples move on to new relationships- and yes, the evidence from the nineteenth century is that for many, especially but not exclusively below the middle-classes who needed to keep up appearances, the lack of divorce was no bar to starting afresh in a new relationship. Amongst the nineteenth century poor, cohabitation after separation (in an era without access to divorce) was common, as was bigamy (and subsequent prosecution) for those that felt that a marriage ceremony was important to affirming the status of the new relationship. A lack of access to divorce for much of this social group did not deter the breakdown of marriage and remarriage, or in any sense, determine ‘social stability’. It did however make property relationships extremely complicated, when old spouses made claims on the new resources of an old partner, which came from a new relationship. Or, who tried to inherit property from an old spouse, despite the claims of a new spouse and family.
And, of course, the interesting thing in these cases is that this was not a simple situation of old spouses being unreasonable or unable to move on. The Victorian woman who brought her life-savings to marriage, only to be left in poverty by a husband and his new family, might think her rights to his property- perhaps to his wage or to his goods after death- as both strong and equitable.
It was also not a situation that while being worse for the individual was cheaper for the state. Because, of course, marriage breakdown often led to deserted wives and children in need of support- and it was the state who either ended up paying for this support or pursuing the men for the money for their support. This was made more complicated in second ‘marriages’ as without a legal marriage, the state found it more difficult (but not impossible) to force these men to support their ‘wives’ and children.
In contrast, access to divorce allows for the separating out of these issues- these lives- to allow for the ending of old relationships and the fresh beginnings of new ones (at least as much as is possible)- which in many ways makes society more stable, or at the very least, more straightforward. The irony is, of course, that this is even more important for those without money, because they cannot access the legal alternatives (like pre-nups, wills and declarations, mediators, or just the threat of legal action) that would help disentangle their resources, while the claim of old partners to your resources is significantly more pressing when those resources are limited. It also leads to a situation where those in abusive- but perhaps not violent- relationships are made much more vulnerable to the continued interference of abusive partners in their lives.
If the nineteenth century taught us anything, it was that a lack of access to divorce did not make the problem of unhappy marriages go away; it just made it more difficult to get on with your life after marriage breakdown. With the removal of Legal Aid, we may see a similar picture once more.
Further Reading
Ginger Frost, Living in Sin: Cohabiting as Husband and Wife in Nineteenth-Century England, (Manchester University Press, 2008).
Katie Barclay is a historian in the Institute of Irish Studies, Queen’s University, Belfast. She is currently working on a book on men, masculinity and the Irish court system.
