Breaking-Up is Hard to Do

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by Petunia Winegum on August 3, 2015

Imagine a law in which actual evidence is not required in court, merely hearsay and one person’s word against another, a word backed-up by the testimonies of prosecution witnesses, all of whom have been heavily coached. Can you imagine it? Nigh-on impossible in this day and age, isn’t it?

Such was the offshoot of alleged adultery within marriage known as ‘Criminal Conversation’ or ‘Crim. Con.’ as it was more commonly called. Until the Matrimonial Causes Act of 1857, divorce was designed with the wealthy in mind, almost exclusively a luxury of the aristocracy and moneyed classes. They were still rare occurrences, however, guaranteed to provoke scandal and bring unwelcome attention to those involved. Annulments were expensive and if a marriage couldn’t be declared null and void, the best part of £200 would be required to obtain a divorce via a private Act of Parliament, something that meant clandestine details of relations between spouses would be discussed at House of Common sessions. The stigma surrounding divorce left most settling for mistresses and maintaining the illusion of domestic bliss, but some were prepared to weather the infamy. Divorce proceedings were handled by the Doctors’ Commons civil courts, an archaic wing of the legal profession mocked (as were the equally impotent Chancery courts) by Dickens in fiction. When it came to Crim. Con. cases, huge amounts of money were won and lost, and most of these suits were based upon flimsy claims that a wife had been observed in the intimate company of a man who was not her husband, often one against whom the husband held a long-standing grievance; the husband’s suspicions would be supported in court by his own servants. The judgement would derive solely from such ‘witnesses’. Another world, wasn’t it?

It took eighty years for the next major breakthrough in divorce laws with the Matrimonial Causes Act of 1937. This finally enabled women to achieve divorce equality with men on grounds of adultery; previously, they’d had to add further enlightening offences such as sodomy, incest or cruelty to the portfolio. However, couples who were prepared to part amicably had to adhere to a specified period of separation that spanned years unless they could cite adultery or unreasonable behaviour. Naturally, if relations remained good, they opted for the former. This would then lead to a farcical situation whereby the eager-to-part partners would have to arrange for one of them to be caught in a hotel room with a third party by a private detective hired to speed-up the process. This charade finally came to end with the Matrimonial Causes Act of 1973, reducing the period of separation before divorce to three years. A decade later, this was reduced to twelve months.

The liberalising legislation of the late 60s and early 70s certainly brought a great deal of unnecessary suffering to an end, but a hell of a lot has changed within society even since then that some aspects of the law has yet to recognise. More recently, of course, there has been the significant introduction of civil partnerships and eventually, gay marriage. One would imagine all bases are covered now, no? Not so. Were you aware that divorce on the grounds of adultery remains a purely heterosexual arrangement? Only penetration of the vagina by a non-spouse is acknowledged by the law as adultery.

In short, if you’re a wife and your husband cheats on you with another man, you cannot divorce him on grounds of adultery. Similarly, if you’re a husband and your wife cheats on you with another woman, the same applies. Ironically, within the liberal boundaries of gay marriage, adultery could only be cited as a reason for divorce if one of the same-sex spouses is caught playing away with a member of the opposite sex. The crime of cheating may be recognised as a moral wrong by those concerned, but legally it only counts if a male vessel docks in a female harbour. Strange how so much effort went into bringing gay marriage about, and yet when it comes to divorce, even this oh-so twenty-first century twist on the institution is as anachronistic as its straight counterpart.

One would imagine in this day and age that any adulterous partner exposed in official divorce proceedings as having secretly signed for the other side wouldn’t find this a source of shame or embarrassment, and yet not every environment is tailor-made for being ‘out’ in our liberated sexual Utopia. Not every family and not every workplace are as accepting and welcoming as those depicted in Weatherfield or Walford. If denial is no longer as commonplace (and legally necessary) as when gay men and women entered into straight marriages to mask their true inclinations back in the repressive 50s, some still prefer the closet to the Gay Pride parade, and marriages where this applies are no happier now than they were sixty years ago.

General legal opinion of those seeking a reform to this particular element of the divorce law is that either adultery be acknowledged as something that is not exclusively heterosexual or the notion of adultery as grounds for divorce be abolished altogether and a ‘no fault’ divorce system be used across the board. And, lest we forget, what those of a religious bent view as the sacrament of marriage would be threatened further by removing any obstacles that make the messy business of divorce any easier; but there are currently no concrete moves to change the definition of adultery, so they needn’t be worried. When the subject was raised during parliamentary debates on both sides of the border before the gay marriage bill became law, the general consensus was that unreasonable behaviour was still sufficient if adultery couldn’t be cited.

Although, according to a 2004 survey, adultery is responsible for 27% of all divorces, it clearly isn’t the cause of every marriage break-up; domestic violence is also a significant contributory factor, yet many couples simply realise the mistake they’ve made and straightforward irreconcilable differences come to the fore. But when adultery does sever the union, the notion that it only counts as such if two people of the opposite sex are guilty of it seems to be one of those curious legal leftovers from another age that nobody has thought of dispatching to the legislation care-home.

© Petunia Winegum

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