Divorce Reform: from Downton to ‘no fault’ divorce - are we as modern as we like to think?

10 December 2012

As Downton fans lament the end of the third series, we are left to speculate on potential plot twists for the fourth (and look forward to the inevitably eventful Christmas special).  My own festive hopes, and pleas to the scriptwriters, centre on Lady Edith and the prospect of divorce reform. 

As yet unlucky in love, Lady Edith was left at the end of the series exasperated by the news that her charming editor (a shining beacon of TV happy-ever-after potential) has a wife in a mental asylum that he is legally unable to divorce.  A fact that Edith, ever the modern Lady, discovered upon a single sleuth-like phone call, before even so much as a meaningful glance/suitably chaperoned rendezvous outside of the office.  At least the early discovery was preferable to a Lady Rochester style debacle or another incomplete trip up the aisle (did I mention she was unlucky in love?).

Sadly for Lady Edith, in the 1920s divorce was only possible where there had been adultery.  And, until 1923, a wife was required to meet the higher hurdle of proving adultery aggravated by some other conduct, such as incest, cruelty, desertion, sodomy or bestiality. 

Frustratingly, the scriptwriters will be unable to release Edith’s editor from his conjugal bonds until 1937, when legislation extended the grounds for divorce and judicial separation (for both husband and wife) to include incurable insanity, as well as wilful desertion, cruelty, life imprisonment and habitual drunkenness.  So, unless Downton skips forward more than a decade in time between series, it seems they have at least a decade in which to drag out the plot…

Divorce law has come a long way since the 1920s.  But many are still surprised to learn that, where both parties want to commence divorce proceedings immediately, it is necessary for one of them to take the blame for the breakdown of the marriage, either as a result of their behaviour or adultery.  The only other option is waiting to fall under the heading of “2 years’ separation and consent”.

Current divorce law is a product of a historical social stigma which no longer exists.  It is no longer necessary for there to be an ‘innocent’ and a ‘guilty’ party.  In fact, it would often assist matters if blame was avoided from the outset, given that, in the vast majority of cases, it will not impact on the financial settlement or the arrangements for children.  Given we also have a bar on divorce petitions within 1 year of marriage, surely the requirement for a 2 year “cooling off” period of separation is unnecessary.  The autonomy of the parties to take the decision to end their marriage should be respected. 

Proposals for ‘no-fault’ divorces were scrapped by Blair’s government; but times are a-changing and here’s hoping we see divorce reform well before the Downton writers catch up with the times.

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On April 7th 2013 Birgit Halberg commented:

Thank you for this very enlightening blog piece!

It was precisely what I was looking for having just watched the full Series III of Downton Abbey - and wondering where Edith and her charming editor are headed ...

Do you really have a 2 year cooling off period of separation?

As I am divorced myself (in 2006-7) thankfully the law in Denmark states that if both spouses agree you can obtain a divorce after having been separated for either 6 or 12 months.

Thanks again - and I will look forward to future series of Downton Abbey ;)

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