The History of Divorce in England and Wales

Divorce law in England and Wales shapes families, finances and social attitudes. Understanding its history helps lawyers, policymakers and couples make better decisions today. This article traces key developments from medieval ecclesiastical control to modern no-fault divorce. It highlights the legal milestones, social drivers and continuing debates that influence how divorce works now.

Early origins: marriage under the church

For centuries marriage fell under the jurisdiction of the Church. The medieval church viewed marriage as a sacrament that created an indissoluble bond. Courts of canon law handled disputes such as annulment, separation from bed and board, and issues of consanguinity. Full divorce allowing remarriage rarely existed. Instead, the church granted annulments when marriages were void ab initio, for example where a party lacked capacity or where close kinship made the union invalid.

The role of canon law set a tone that marriage was a moral and spiritual union rather than a contract. That view continued to influence English legal thinking long after secular courts began to acquire jurisdiction over matrimonial matters.

The Tudor and Stuart shift: secular influence grows

From the 16th century a gradual shift from ecclesiastical to secular jurisdiction took place. Henry VIII’s break with Rome in the 1530s created political incentives to control marriage law at the Crown’s pleasure. However, meaningful secular divorce remained uncommon.

The growth of equity courts and the expansion of Parliament’s power during the 17th and 18th centuries created channels for challenging the church’s monopoly on matrimonial issues. Private Acts of Parliament became the only reliable route to obtain a full divorce and the right to remarry. These acts were expensive slow and available mainly to the wealthy, which illustrated how social status shaped access to divorce.

19th century reform: Matrimonial Causes Act 1857

The Matrimonial Causes Act 1857 marked a watershed. It transferred jurisdiction in most matrimonial cases from ecclesiastical courts to a new civil court the Court for Divorce and Matrimonial Causes. For the first time ordinary people could pursue a legal separation or divorce through a defined civil process rather than lobbying Parliament.

The Act introduced fault-based grounds for divorce. Husbands could petition for divorce on the grounds of a wife’s adultery. Wives faced a higher burden: they needed to show adultery combined with additional misconduct such as cruelty desertion or bigamy. Reformers criticised this gender bias and campaigned for equality under the law.

Victorian social pressures and legal tension

Throughout the late 19th century lawmakers sought to balance moral anxieties about marriage with the growing demand for greater legal access. Subsequent legislation refined financial provisions custody and judicial procedures. Courts increasingly recognised children’s welfare as a key consideration balancing the rights of parents and offspring.

Divorce rates remained low compared with today. The social stigma attached to marital breakdown and the cost of proceedings kept many couples together. Yet legal reform slowly normalised the idea that marriage could end legally and that the state had a legitimate interest in regulating the process.

20th century changes: from fault to welfare and equality

The 20th century produced major changes in both grounds for divorce and ancillary services. The Matrimonial Causes Act 1937 broadened the range of fault grounds to include cruelty desertion beyond the narrow adultery focus of 1857. This expansion reflected changing social attitudes to marital wrongdoing and personal safety.

After the Second World War demand for divorce rose. Courts adapted by developing welfare principles for children and by improving financial remedies for spouses. The Divorce Reform Act 1969 introduced the concept of irretrievable breakdown as the central legal test for divorce replacing strict fault requirements. It relied on five facts to establish breakdown: adultery unreasonable behaviour two years’ separation with consent five years’ separation without consent. The 1969 Act sought to reduce acrimony by permitting separation as a legitimate path to divorce.

Legislative reforms targeted gender inequality. Case law and statutes evolved to treat spouses more equally in financial settlements pensions and property division. The Family Law Act 1996 attempted to modernise family justice processes but contained ambitious provisions many of which did not come fully into force. Still the trend toward more protective family welfare and procedural fairness continued.

Human rights and family law in the late 20th and early 21st centuries

Growing emphasis on human rights and children’s rights changed how courts decided family cases. The Human Rights Act 1998 enabled family courts to consider Article 8 rights to private and family life when dealing with divorce related disputes. This development influenced decision-making in complex cases involving relocation domestic violence and childcare arrangements.

The Family Law Act 1996 and subsequent reforms encouraged alternative dispute resolution such as mediation to resolve finances and child arrangements without contested court hearings. Legal aid cuts in the 2010s reduced access to legal advice for many litigants prompting debate about fairness and the availability of justice in family disputes.

No-fault divorce: modernisation with the Divorce, Dissolution and Separation Act 2020

A significant recent change arrived with the Divorce, Dissolution and Separation Act 2020 which implemented no-fault divorce for England and Wales. The Act removed the need to assign blame using behaviour or separation facts. Instead a statement of irretrievable breakdown suffices.

The reform aims to reduce conflict by allowing couples to separate without demonstrating fault. It introduces a minimum period between the start of proceedings and the final order to encourage reflection and negotiation. The new procedure applies to civil partnerships as well as marriages. Practitioners and family judges continue to develop guidance about financial and childcare negotiations within the no-fault landscape.

Impact on children finances and family law practice

No-fault divorce promises to change the tone of many separations. By removing blame court fights over behaviour may fall and mediation may become more attractive. However us legal advisors stress that financial settlements and arrangements for children still require careful negotiation. Judges retain discretion over ancillary relief and child welfare matters under long-established principles.

The interplay between modern mediation services collaborative law and court-based resolution defines contemporary family practice. Solicitors financial advisers and mediators now work more closely to produce holistic outcomes for separating families.

Continuing debates and future directions

Despite reform debates continue. Critics argue that no-fault divorce could disadvantage a financially weaker spouse who loses negotiating leverage. Others worry about quick dissolutions that bypass reconciliation attempts. Proponents highlight reduced hostility and better outcomes for children.

Future reform may focus on improving access to legal advice easing financial inequality and integrating technology into family justice. The courts will face pressure to handle complex cases involving international elements pensions and digital assets. Family law scholars continue to debate how best to balance autonomy fairness and protection for vulnerable parties.

Conclusion: learning from history to shape better law

The history of divorce law in England and Wales shows steady evolution from ecclesiastical control to a predominantly secular and welfare focused system. Each reform reflected social changes economic pressures and shifting moral attitudes. No-fault divorce represents the latest step in a long trajectory towards reducing stigma and prioritising practical resolution. Lawmakers and practitioners must now ensure that legal processes protect children support fair financial outcomes and provide accessible routes to justice.

At Alexander JLO we have many years of experience of dealing with all aspects of family law and will be happy to discuss your case in a free no obligation consultation. Why not call us on +44 (0)20 7537 7000, email us at info@london-law.co.uk or get in touch via the contact us button and see what we can do for you?

This blog was prepared by Alexander JLO’s senior partner, Peter Johnson on 19th September 2025 and is correct at the time of publication. With decades of experience in almost all areas of law Peter is happy to assist with any legal issue that you have. He is widely regarded as one of London’s leading divorce lawyers. His profile on the independent Review Solicitor website can be found Here