FREE CHAPTER from ‘The Journey to No Fault Divorce – A Practical Guide’ by Liz Cowell


For millennia, sexual relationships between men and women have been governed by the religious authorities in most civilisations.

Throughout history women have been regarded as chattels: initially owned by their fathers, (and in some instances by their brothers) and then by their husbands. These relationships were controlled by the relevant theological bodies across the globe.

Same sex couples were rarely tolerated, and still arent in many countries. Such couples were often persecuted with no protection in law. In fact, they are still persecuted today in many jurisdictions worldwide. In this jurisdiction – ie, in England and Wales – same sex couples can either marry or enter into a civil partnership. This has been achieved since relationships between adult male homosexuals were legalized following the Sexual Offences Act 1967.

Of the Abrahamic religions, both Judaism and Islam have always made provision for the breakdown of marriage, and have long established means of ending such unions. Furthermore, both religions allow for post-nuptial settlements to be brokered even before the marriage, something that is still not fully provided for in this jurisdiction. However, in the religious courts of these two faiths, the power to divorce still lies primarily in the hands of the husband.

In Western Europe, Christianity was governed by the Pope in Rome until the Reformation in the 16th century. Until then, Christians believed the biblical teaching that ending a marriage was contrary to Gods will. For this reason, not only was divorce forbidden, but post-nuptial settlements were also banned.

This did not mean that the rulers in Christendom always remained tied to an unwanted spouse. Annulments were relatively easy to obtain from the Pope, by arguing that the marriage was void because the parties were too closely related.

Here in England and Wales we were taught in school that the Churchs hold over matrimonial matters was broken in 1533 by King Henry VIIIs divorce from Catherine of Aragon.

A devout supporter of the papacy, King Henry VIII had expected his marriage to Catherine to be annulled as previously she had been married to his older brother, Prince Arthur, who was now deceased. Unfortunately for the King, Catherine was adamant that her earlier marriage had not been consummated, and she wished to remain Queen of England. She was also the aunt of the Holy Roman Emperor who held control over the Pope, who sided with Catherine, refusing to grant King Henry an annulment.

This transpired during the time of the Reformation, when Protestants were preaching a new interpretation of Christianity across Europe. As some of their teachings allowed for divorce, King Henry decided to sever ties with Rome, appoint himself Head of the Church of England, and persuade the Archbishop of Canterbury to grant him a divorce.

Following the break with Rome, the Ecclesiastical Courts, previously responsible for theological matters, maintained the power to deal with matrimonial issues. However, a divorce could only be obtained by a husband, by way of an Act of Parliament. This meant that divorce was only open to the wealthiest and the most influential male members of society.

Marriage itself was not so well-defined for those who did not own property. Many people were in what were known as common-law marriages these were permanent relationships, but there had not been a church wedding to mark the union.

By 1857, the year when Parliament introduced the Matrimonial Causes Act, giving women legal standing to use the Civil Court to seek a divorce for the first time, society was rapidly changing. Most of the population was moving from the countryside into the industrialised cities. The first national census, conducted in 1841, demonstrated that women were working alongside men in the factories amid the beginning of a fledgling Womens Movement. Women would not gain full control of their property until the Married Women’s Property Act 1882, but by the mid-19th century it became clear to Parliament that there was a need for reform, and that divorce should be made accessible to more people.

Thus began the shift from the total legal subordination of married women, who were slaves in all but name, to sexual equality. No longer would a married woman’s person, her property, and her earnings belong to her husband.

During the next 165 years, women would gain freedom from being beaten and raped by their husbands. They would no longer be confined without their consent; they would enjoy joint parental responsibility for their children who could no longer be removed from their care by their husbands – nor would men be able to prevent women from seeing or writing to their offspring.

Same sex couples would be able to marry, and it would become possible for any couple to enter into a civil partnership instead of marriage.

Today no child is in a position whereby he or she can be married under the age of eighteen even with their parents’ consent. Arranged marriages abroad or in the jurisdiction for under 18s cannot be entered into by anyone habitually resident in this jurisdiction – these are deemed forced marriages.

Forced marriages have had criminal sanctions since the introduction of the Anti-Social Behaviour Crime and Policing Act of 2014. However, children were not sufficiently protected from being coerced into marriage while under-age (under 18). The Marriage and Civil Partnership (Minimum Age) Act 2022 will now treat the marriage of any child as a forced marriage.

The Matrimonial Causes Act 1857

The 1857 changes came about as a result of men realizing that absolute authority over married women could not be justified by scripture or by the practical realities of family life.

Social historians struggle to fully explain how this transpired, as earlier advocates for social change such as Mary Astell and Mary Wollstencroft were largely ignored by those in power; instead, they created alienation rather than empathy towards the advancement of women’s rights. However the 1830s,1840s and 1850s saw a more subtle form of intelligent and unthreatening lobbying by such women as Caroline Norton and Barbara Leigh Smith Bodichon.

The Divorce, Dissolution and Separation Act 2020

On 6 April 2022 Parliament brought into force the Divorce, Dissolution and Separation Act 2020 which allows married parties and civil partners the right to divorce or to end a civil partnership on a no-fault basis. When a marriage or civil partnership goes wrong it is no longer necessary to show or prove the wrongdoing of the other party, or to apportion blame, in order to obtain a divorce, dissolution or separation.

The Act has only nine sections.

A marriage or civil partnership can now be ended on the sole ground of irretrievable breakdown. The old Ecclesiastical names for the stages of a divorce, namely the Decree Nisi and the Decree Absolute, are replaced by the Conditional Order and the Final Order – both will be known as Divorce or Dissolution Orders.

Petitioners will now be called Applicants.

The parties to a marriage or civil partnership can apply for a divorce as joint applicants where they both agree that the marriage has irretrievably broken down, albeit a sole applicant can also apply without the other party’s consent.

This book explores the journey which led to the new law, and why it is that, for the first time in our history, both sexes have the freedom to live in a marriage or civil partnership with no intervention from the Church and very little from the State, unless they require the help of the courts.