Chapter 7 Divorce law reform and feminism in the 1950s

The rise of divorce

Civil divorce was introduced in England and Wales in 1857: to obtain one, men had to prove their wife’s adultery but women had to prove their husband’s adultery aggravated by another independent offence such as bestiality, sodomy, incest or rape. In 1923, under feminist pressure, adultery became the sole ground for divorce for both sexes. The Matrimonial Causes Act 1937 widened the grounds to include desertion, cruelty and insanity. Every reform increased the numbers of divorces, as did the Second World War and its aftermath: the 47,000 divorces of 1947 were eight times the number in 1937.¹² The Legal Aid and Advice Act 1949 made divorce available to people with limited funds, of whom women were the main beneficiaries. In addition, as the Royal Commission on Marriage and Divorce noted in its 1956 Report, ‘Women are no longer content to ensure the treatment which in past times their inferior position obliged them to suffer’ (para 45), and some men found it hard to accept this changed position.¹³ Although the divorce rate declined over the 1950s, it remained a matter of public concern in a society premised not simply on the social superiority of marriage but on an economic model in which wives derived most of their financial support and benefits through their husband.¹⁴

While it might seem counter-intuitive to call for even wider grounds for divorce at a time when the divorce rate was causing public concern, there were moves to make it accessible to many whose situations did not fall within the existing grounds. The campaign leading up to the 1937 Act had revealed considerable social discomfort about the existence of ‘dead’ marriages that could not be formally ended because the required fault could not be found, or could only be ended by fabricating evidence, thus making a mockery of the law. The war had made this situation worse with many hasty and unconsidered marriages needing to be undone.

Matrimonial Causes Bill 1951¹⁵

It was in response to this concern that the Divorce Law Reform Union proposed divorce on the sole ground of seven years’ separation. Though many lawyers preferred ‘the irretrievable breakdown of the marriage’, it was the seven years solution that was taken up by Marcus Lipton MP (Labour, Brixton), a barrister, who tabled an amendment to the Law Reform (Miscellaneous Provisions) Bill 1949.¹⁶ Though supported by 200 MPs, this failed to proceed. The cause was then taken up by the recently elected Eirene White (Labour, Flint East) in 1951, who had promised her constituents she would do so if she won a place on the private member’s Bill ballot.

Mrs White was motivated by the plight of the second families formed after the breakdown of the first: the couples ‘living in sin’, often with children, who could not marry because one or both of them could not divorce the earlier partner.

The social purpose of this Bill is to meet the situation in which many thousands of men and women are living apart in a state which is not marriage, in any full sense of that word, but in which they are unable legally to form another union or to establish a normal home life. The estimates of the number of those separated vary from 100,000 to a much higher figure, and I myself would not be prepared to press the higher figure, but it is quite clear that we have here an important social problem, especially when one takes into account the third parties often involved and the number of illegitimate children (927).

Her primary concern, then, was for ‘those who wish to establish a second legal marriage and, in particular, those who wish to have children’ (928). Thus could a proposal for facilitating divorce be represented, by a paradoxical sleight of hand, as one designed to strengthen marriage.

She further pointed out that the current position – that allowed women to be supported for years, decades even, after the marriage was dead – was unfair to men.

I have in mind the case of a man whose earnings have never been more than £5 or £6 per week, but who, over a period of years, has paid more than £2,000 in maintenance to a woman whom he has not seen for 20 years and is never likely to see again. He committed no moral offence, beyond making a mistake in his choice of partner. The result is that she collects a pension for life, while keeping him legally tied (930).

And, by implication, unable to remarry.

There are two untested assumptions in Mrs White’s argument: first, that those couples currently unable to marry because of a previous tie would actually wish to formalise their new union – and would do it – and, second, that even if they did remarry the second marriage would not itself end in divorce. Perhaps if Mrs White’s Bill had passed in 1951, this might have been the case. But by the time that divorce law reform was actually achieved, almost two decades later, the world had changed: re-marriages soon ceased to compensate for the increase in divorce, and marriages of once-divorced people proved rather more fragile than anticipated.¹⁷

Easier divorce is not usually a measure attractive to feminists. But Eirene White was a new kind of Labour woman, steeped in party politics from childhood, intellectual and aloof from the other women MPs.¹⁸ Her father had been cabinet secretary to four prime ministers; she had studied politics, philosophy and economics at Oxford; she had worked as a political journalist. She married late (at thirty-eight), a man two years her junior; they had no children. Her husband had been divorced and this may have made her sympathetic to the cause.¹⁹ As a professional woman her allegiance would naturally be to the politics of equality and individual choice and agency, not one of protectionism: in 1947, for instance, she had persuaded the Labour Party conference to accept the principle of equal pay.

Every MP who spoke in the debate had received a large volume of letters from interested parties. It was noted that public support for divorce law reform generally came from those with a personal investment in the matter (which is why many supporting MPs felt it necessary to declare their own happy marriages), while opposition was generally ‘a matter of belief or principle’ (959).

There was considerable resistance to Mrs White’s Bill in Parliament. Apart from the usual objections to the liberalisation of a law – ‘hard cases make bad law’, ‘thin end of the wedge’ (seven years could soon be reduced to five, three and even two) (954), and ‘it is only a matter of time before we get down to divorce by consent’ (988), the main criticism was that the Bill enabled what Mr Wood (Conservative, Bridlington) called divorce ‘by unilateral compulsion’ (948).

On this point, each MP had his or her own image of the reluctant divorcee. Here is Mr Wilkes (Labour, Newcastle-upon-Tyne Central) speaking from experience as a Circuit Judge:

Let me refer to the most common type of case which I meet in the course of practice and my ordinary work among constituents. It is the case of the woman who, after, say, 10 years of being thoroughly overworked, immersed in her family and in the drudgery of housework without the slightest aid of modern equipment, has grown drab in looks, and whose husband has taken his entertainment and has developed interests outside the home. So far as working-class families are concerned, this is a very common phenomenon indeed. Under this Bill, this woman who has grown drab and aged before her time because of her sacrifice for home and children is going to be placed at the mercy of and compelled to submit to a divorce by a husband who has merely separated himself for the statutory period (969).

Mrs White, however, had quite a different idea of the married woman whose husband sought divorce – the woman who out of spite or vindictiveness refused to allow her husband to divorce her.

I have every sympathy with the man or woman who is genuinely wronged and who is left to face the world with a family without a partner to whose help he or she is entitled. But I have no sympathy whatsoever for the harpies who try to make the most they can out of a broken marriage relationship. If anything has made me wish to bring this Bill before the House it is some of the letters I have received from the intolerably self-righteous (933).

‘Harpies’ is an offensive word, one exclusively applied to women, and, unsurprisingly, many MPs objected to this characterisation. Reluctant divorcees might have good reason to resist, they insisted: because they hoped for a reconciliation or held a religious or other conviction that divorce was wrong (947, 975). Probably because she was not herself a religious woman – she told the House she had been married in a Register Office (926) – Mrs White showed little interest in this view.²⁰ The church could have its rules. Divorce was a civil matter and the State should do what it thought best (938).

There was, finally, scepticism about the claim that the Bill would strengthen marriage; by making divorce so easy, opponents argued, marriage would cease to be much of a commitment, might even cease to have any value at all; Ronald Bell (Conservative, Bucks South) went so far as to declare, ‘This Bill, in fact, is going to abolish marriage’ (994). A sizeable contingent of opinion therefore wanted divorce to be so difficult to access that couples would be forced to work harder at their marriages.

Not every objection was simply a principled one, however. A small number of MPs, male as well as female, raised the issue of the material disadvantage to homemaker ex-wives of the loss of the financial support they had always received from their husbands, as well as the loss of their widow’s pension, insurance benefits and inheritance rights on an intestacy. One such objector was Patricia Hornsby-Smith (Conservative, Chislehurst) who, in contrast to Mrs White, was the daughter of a master umbrella-maker. She left school at sixteen to become a typist, and now, unmarried, lived in her own flat with an aunt to housekeep for her.²¹ In an interview with Godfrey Winn, Miss Hornsby-Smith displayed her feminist credentials with anecdotes about her treatment as a female MP and learning to deal with men in committees (‘Believe me, it is an art in itself’).²² When Winn praised her for not looking for ‘special favours’ for her sex, she corrected him: ‘I do think that women should stick together, in that they should support their own sex’.²³ This would explain why she opened her speech with words of gracious admiration and respect for Mrs White, while nevertheless disagreeing with her. For her, the loss of pension and other benefits was the real problem if divorce were allowed without the consent of an innocent wife. She even raised the spectre of divorce by consent (974, 975, 980). ‘I therefore believe that we must carefully protect the middle-aged woman who has devoted herself principally to her household and her children, and who may not have maintained the superficial attractiveness which may still beguile her husband in another direction’ (977).

Mrs White met these objections by explaining that, under her Bill, a divorcing husband would not get his decree unless the court was satisfied that he could support his first wife and family as well as the second. This led Mr Black (Conservative, Wimbledon) to identify one law for the rich and one for the poor – the rich man could get his divorce because he could support two families, while the poor man could not (953). And of course, demonstrating one’s ability to pay and actually doing it were two different things: Mr Wilkes raised the issue of non-payment of maintenance which, he said, would only be increased by the Bill (968). Mrs White struggled to remind her critics that the women who fell within the ambit of the Bill had been living separately from their husbands for seven years and often without financial support, so would be in no worse position on divorce. She showed her impatience with reference to the loss of benefits by declaring that she had ‘seen so many of these cases that I have come to the point of asking myself, Is this woman really married to a man or to an old age pension?’ (931).

The reason for the lack of detailed consideration in her Bill of the financial matters, Mrs White told MPs, was that she wanted to keep it short and simple so that lawyers could not get embroiled in endless amendment and lose sight of the central principle (927). While fully admitting that ‘not everybody can afford the luxury of two families’ (928), in an unfortunate turn of phrase she dismissed these concerns as ‘on a lower plane’ (931). There were many things wrong with the law of marriage, she said; maintenance was a problem during the subsistence of a marriage quite apart from on divorce; but ‘we ought to settle in our minds the principle … and [only] then we should face any economic consequences in a larger and more intelligent way’ (931).

Feminists will recognise the discursive devices employed in these debates. Two groups of women were pitted against each other, the legal wives and the new partners; likewise the plight of the (‘illegitimate’) children of the second family and the legitimate though abandoned first family; and the ensuing discussion inevitably threw up anecdotes challenging the notions that abandoned wives were always blameless or that fault was one-sided, with many MPs asserting that it was inappropriate to look for fault when a marriage had irretrievably broken down (940). And there will always be some injustice to men to highlight.

In one of the most interesting contributions to the debate, Mrs Ganley (Labour, Battersea South) challenged two of the stereotypes being bandied about. The first was that the beneficiaries of the Bill would inevitably be men keen to replace older wives with a younger model. Mrs Ganley described the case of a female constituent who had not seen her husband for twenty-three years, who could not prove his death, and who had reluctantly entered into another relationship. This woman spoke of ‘the misery of trying to conceal the fact that she was, as she thought and as the world thinks, living in sin’.²⁴ Mrs Ganley added that ‘There are even old age pensioners who are still hoping that a Bill will come along to give them relief so that they might be able to claim that they were respectably married’ (961).

The other stereotype she countered was that of the penniless, defenceless divorcee. The problem of deserted women was much exaggerated, she said.

We should remind ourselves that conditions today are very much better for many people than they were in the past. The younger woman today is much better able to maintain herself than she was in the 1930’s, and a little later on. The economic situation generally is very much easier than it was in those days, and such people, although they can claim our sympathy and understanding, are in a much better economic situation than ever before (963).

Mrs Ganley spoke with authority. At seventy-one years of age she had witnessed huge changes in married women’s economic situation over the decades in which she had been active in labour and feminist politics. Married, with three children, she had nevertheless pursued a career in public life as one of the first female Justices of the Peace (JPs), in the London County Council, and as a national representative of the Women’s Cooperative Guild. She had kept her independence and, in so doing, must have come across many women like herself.

To the government’s annoyance, for it was not keen to take divorce law reform forward, the Bill passed its second reading with a substantial 131 to 60 majority. But Mrs White reluctantly withdrew it²⁵ when it became clear it would not pass in the current session.²⁶ As consolation prize, the government promised a Royal Commission into marriage and divorce. Everyone knew that a Royal Commission was a tactic used by governments who wished to postpone consideration of an issue, but its wide terms of reference – to encompass all aspects of marriage as well as divorce – were welcomed by the feminist groups pressing for financial rights for married women.

Two feminist approaches

It will be clear from this account that women, like men, did not all think alike on the subject of divorce law reform and its effect on women. Yet I would argue that both the approaches of Eirene White and Caroline Ganley on the one hand, and Pat Hornsby-Smith and Edith Summerskill (who did not speak in this debate but dominated the later ones) on the other, were feminist.

Mrs White and Mrs Ganley were liberal or equal-rights feminists, whose primary goal was to abolish all distinctions in law between men and women and give both sexes equal opportunities and choices. Equal-rights feminists did not elevate marriage and homemaking above all other concerns: Phyllis Whiteman, for example, told the readers of her Speaking as a Woman that they should walk out on an unsatisfactory husband and get a job.²⁷

Miss Hornsby-Smith and Dr Summerskill represented the protectionist or ‘new’ feminists, who aimed to improve the position of the dependent housewives who formed the majority of women at the time. The goal of the Married Women’s Association, formed in 1938, was to ‘secur[e] legislation to establish an equal financial partnership in marriage’ and thus transform the power balance between men and women.²⁸ Where Mrs White and Mrs Ganley looked to the future and saw modernising measures such as divorce law reform as incentives to women to work towards greater independence, Miss Hornsby-Smith and Dr Summerskill took women as they mostly were, dependants of men, and sought to protect their position in that valuable role.²⁹

But even within the two groups there were differences. In 1949 Jean Mann (Labour, Coatbridge) agreed to sponsor a private member’s Bill (ultimately unsuccessful in the ballot) to allow wives a right to their housekeeping savings and a share of their husband’s earnings. The Married Women’s Association, however, opposed ‘wages for housework’ which, they feared, would strengthen the husband’s position as boss.³⁰ They favoured joint ownership of property and income. Later the association split over this issue, with the dissidents, led by its then president, Helena Normanton QC, arguing that husband and wife should be able to agree an allowance and that separate property was preferable to joint ownership, since husbands could not be trusted with their share.³¹

At the same time, there was substantial agreement among feminist groups on many issues. Eirene White favoured a wide portfolio of causes, among them separate taxation for married couples but also the removal of purchase tax from women’s cosmetics (a necessity, not a luxury, she argued). She had a clear understanding of sexual politics: she spoke in debates on prostitution, called for safeguards for children in nurseries, and at the 1961 Labour party conference remarked of Tory proposals for hanging and flogging that ‘Although they do not realise it … they are displaying the deficiencies of their own private lives … we all know the connections between sex and sadism’.³²

On the other side, Edith Summerskill supported equal pay as well as rights for housewives, recognising that equality in the workplace and equality in the home were two sides of one coin as far as men were concerned:

The thought that she [the wife] might ever hanker after interests outside the home or give a thought to the welfare of those other than himself [the husband] and his family alarms him … The main sufferer would be himself and any inconvenience or discomfort even of the most trivial nature is anathema to him.³³

Juanita Frances of the Married Women’s Association stated that she was personally in favour of Mrs White’s Bill but that her organisation was really concerned with marriage as an equal partnership and ‘financial protection for married women’.³⁴

Joint feminist efforts lay behind the Deserted Wives Bill 1951 which would have empowered courts to transfer the tenancy of a home in a man’s name to his deserted wife. Introduced by Eveline Hill (Conservative, Manchester Wythenshawe), and supported by Irene Ward (Conservative, Wallsend & Tynemouth), Viscountess Davidson (Conservative, Hemel Hempstead) and Freda Corbet (Labour, Camberwell North West and Peckham), the Bill shows how women MPs from all parties came together on issues affecting women. It received a second reading but was defeated by a narrow minority.

The following year Edith Summerskill (Labour, Fulham West) introduced the first of two Women’s Disabilities Bills 1952³⁵ and 1953 which, as well as repeating the provision for transfer of a deserted wife’s tenancy, incorporated two other proposals.³⁶ The first was that the housekeeping allowance paid by a husband to his wife should be jointly owned. This followed a chain of sad cases in which deserted wives who had built up savings through careful management had been forced to surrender the surplus to their husbands as his property.³⁷ The second proposed that the arrears of maintenance payments by a man to his deserted wife should be recoverable from his wages. The 1953 Bill, introduced by a male sympathiser, Horace King (Labour, Southampton Test), extended this last provision to men who failed adequately to provide for their wives and families during the marriage. Jennie Lee (Labour, Cannock) spoke in support, prefacing her remarks with a rebuke to Ronald Bell for trying to talk the Bill out (828). Unusually for a woman MP, she referred to herself as a feminist, at the same time distancing herself from other feminists by arguing for increased family allowances – the Labour Party line – as preferable to taking money from a husband to give to his wife (830–1). While the first Bill received a second reading but failed to proceed, the second did not even get that far.

Royal Commission on Marriage and Divorce

Much has been written about the Royal Commission that reported in 1956, most of it expressing bitter disappointment at its failure to produce any concrete recommendations for the liberalisation of divorce because of the level of disagreement among the seventeen commissioners. The commission’s consideration of the financial aspects of divorce, however, and the position of married women generally, have received less attention: Otto Kahn-Freund, for example, omitted this topic entirely from his Modern Law Review review of the Report in 1956.³⁸ Yet it was radical in its admission that housewives suffered significant financial disadvantages and its consideration of various remedies designed to overcome these. The credit for this must go to the women’s associations and individual women who submitted evidence to the commission, some of whom (like the Mothers’ Union) opposed divorce outright, while others, like the National Council of Women (representing ninety-seven affiliated groups), focused on promoting equality within marriage in the new feminist tradition.³⁹

In the end, however, the report disappointed equal-rights and new feminists alike. The equal-rights feminists were cross that the Royal Commission rejected the reform embodied in Eirene White’s 1951 Bill, instead emphasising the need to support and buttress marriage as an institution and individual marriages, however problematic. It called for public funds to be available for education and marriage guidance and conciliation.⁴⁰ Yet the form of marriage it supported seemed little influenced by feminist ideas of equality.

New feminists would have found a measure of encouragement in the commission’s rejection of easier divorce but in little else. Neither equal division of the family income nor any form of community of property fell on receptive ears. Any suggestion that men should share their property with their wives and ex-wives proved a sticking point, with commissioners divided over some proposals and rejecting others outright.

Many of the new feminists were in favour of community of property – the idea that spouses should share ownership of the marital property equally – which would certainly have made property division on divorce much simpler and would have provided divorced women who had few other assets with property of their own. But where half the commission members supported the principle, in various forms, the other half did not: for them, not only was community of property un-English and complicated to administer but, significantly, they believed that the existing English ‘separate property’ regime was a better one. Community, they warned, could lead to unfair results, as in the case of the ‘wife who has a lazy and improvident husband and who by her own hard work and thrift has managed to buy a house’ (para 651) and who would, perforce, have had to sell it and divide the proceeds equally with that undeserving husband. New feminists might complain that a rare exception was being invoked here to refute a much more general rule; that it would be a propertyless hard-working housewife who was claiming against a propertied husband. But the commission’s reluctance to accept community of property may have struck a chord with equal-rights feminists, who were generally professional women with an earned income they would not necessarily wish to share, and who would prefer a regime that allowed women to take their own paths in life. Barrister Florence Earengey thought that property-sharing would cause strains in a marriage and noted that court decisions that applied a principle of equal sharing (such as Denning’s ‘family assets’ analysis) all too often resulted in the woman getting less than her fair share.⁴¹ English law permitted co-ownership and ‘husband and wife are always free to own property together if they so wish’, the Report pointed out (para 651).⁴²

The sole area on which all commissioners were agreed was that co-ownership should apply to the allowance a husband paid his wife for housekeeping. This measure was eventually enacted, but not until 1964.⁴³

Equally, the commission rejected the proposal that a wife should be legally entitled to a fixed allowance or proportion of her husband’s wages. This would give wives money of their own and so alleviate the vulnerability of total dependence on a husband. The commission contended that this was something it would be impossible to legislate for: every couple’s financial situation was different and a sum suitable for one would not be suitable for another (paras 654–5). Husbands were already bound in common law to maintain their wives but the degree of support during the marriage and whether maintenance should extend to ex-wives (especially those guilty of a matrimonial offence or those who had remarried) were matters of dispute.

The commission also rejected the feminist proposal that a spouse should be able to apply to a court for disclosure of the other spouse’s earnings, assets and liabilities, including payslips and tax returns. This, the Report said, was ‘not a matter where legal provision would be appropriate’ since marriages should be based on ‘mutual trust’ (paras 707–11).

On the loss of her National Insurance benefits on divorce, the commission examined proposals ranging from enabling a married woman to make her own contributions (‘a radical alteration to the Scheme’, para 713) to giving divorced women a pension equivalent to a widow’s (worth considering, para 714) but found them all, along with separate taxation (received favourably), outside their terms of reference (para 717).

Feminists had also proposed that wives whose husbands defaulted on maintenance payments should be able to obtain an order for attachment to wages, under which employers would deduct the payment before the man was paid. This, too, was rejected, the arguments against this eminently sensible measure (already in place in Scotland) being that (1) it discriminated against employed men since it could not be applied to casual and self-employed workers, (2) it would ‘tend to upset generally the relations between employers and employees’, and (3) ‘to take money from the husband in this way would represent an interference with his independence’. Such a consensus between employee, employer and commission members offers insight into the strength of masculine resistance to, as the Report put it, ‘anything which seemed to savour of an attack on the income of the wage earner’ (para 1100).

The family home

In common law a husband was obliged not simply to support his wife and family but also to provide a roof over their heads. If feminists were concerned about financial support for a divorced housewife, they were particularly exercised by the possibility that she might lose her home. A profound irony lay in the fact that the home was not just accommodation for such women, it was their domain (as the word ‘housewife’ indicated), their very raison d’être. But all too often it belonged in law solely to their husband, in which case on divorce a woman would have no share in the financial asset and, more disastrously, would lose her right of occupation.

In the immediate post-war years English land law had begun to grapple with the problem of increasing numbers of deserted wives claiming an interest in the home or the right to continue to reside in it. Case law in the mid-1950s was in a stage of development described by the Attorney General, Sir Lionel Heald, in the debates on the Women’s Disabilities Bill 1952 as ‘extraordinarily obscure’.⁴⁴ Homes in this period were generally conveyed to the husband on the assumption that as breadwinner he would provide the purchase money and pay the mortgage instalments. But where wives had made financial contributions, as was becoming more common with married women’s paid employment increasing over the decade,⁴⁵ implied trusts were beginning to be used to give them a share based on the proportion to the property’s value they had contributed.⁴⁶ As co-owners, such women had a right to occupy the property until its sale, when they would receive their share of the proceeds. In the more common case where the wife had contributed nothing in financial terms, Lord Justice Denning, conscious of the injustice done to a homemaker if she lost her home, had developed something called the ‘deserted wife’s equity’ – a right of occupation that was good not just against her husband but against the world.⁴⁷

The commissioners found this problematic. To deprive a man of the use of his property ‘is a far-reaching inroad on the rights of ownership’ (para 658) and could not be justified as a long-term measure. But the main objection to the deserted wife’s equity was not the deprivation of the husband (who, after all, was at fault for deserting her) but the ‘insecure position’ in which it placed other people with interests in the land. It is fundamental to English conveyancing that third parties (purchasers, mortgagees, trustees in bankruptcy) should only be affected by interests of which they have ‘notice’ – that is, if the interest is recorded in the Land Register or (in unregistered land) in the Land Charges Register. But the deserted wife’s equity was not an interest capable of registration – thus, any of these parties should be able to take the land free of her interest.

Land law is essentially concerned with conflicts between parties who both have rights to the same piece of land. Here the conflict was between the deserted wife in her home and the person to whom the husband (the legal owner) had sold it, the mortgagee seeking to repossess the property on default, or the trustee in bankruptcy wishing to assemble the bankrupt husband’s assets to pay his debts. The Royal Commission’s proposed solution reflects the preference of English land law for certainty in property transactions rather than the concern of English family law for fairness for people. Thus their report could express sympathy, even pity, for the plight of the deserted wife, but ultimately favour the other party to the dispute.

A married woman may spend years of her life looking after and improving the home.… If, on marriage, she gives up her paid work in order to devote herself to caring for her husband and children, it is an unwarrantable hardship when in consequence she finds herself in the end with nothing she can call her own (para 652).

But her moral right should not take precedence over the legal right of third parties to take the land free of her interest unless they had prior ‘notice’ of her. Of course, they could simply ask the seller if anyone else had a right or interest. But any requirement to investigate a man’s personal circumstances was anathema to lawyers: ‘it would not be reasonable for an intending purchaser or lender to have to enquire into the relationship of husband and wife’ (para 612, quoting Westminster Bank v. Lee [1955] 3 WLR 376). Thus was the privacy of a man’s home and domestic life held sacrosanct in the 1950s.

So what did the commission propose? First, that the deserted wife’s equity should bind the husband until he obtained a court order to get her out of the home – with the proviso that the court could withhold that order if it thought fit (para 667).⁴⁸ This was not new. But, overturning the existing situation in case law, her equity should no longer bind third parties; instead, the wife could apply to the court for an injunction to prevent her husband from transferring an interest to a third party (para 669). But this, too, could be refused, and of course she might only find out about the sale or repossession when it was too late to prevent it. The solution finally proposed to protect such a woman was that a spouse’s right of occupation should be registrable, even though it was not really an interest in land but a mere equity. Once registered, it would bind third parties because they would have notice of it – that is, they would have to allow the deserted wife to remain in occupation until and only if an order for possession could be obtained (para 670). The safeguarding possibilities of this measure, eventually enacted in 1967, have always been limited by spouses’ ignorance of the need to make the registration until it was too late.⁴⁹

In the situation where the husband defaulted on the mortgage repayments, the commission recommended that the deserted wife should be able to take over the mortgage repayments so that the property would not be repossessed (para 677). But most deserted wives would not have had the means to do this.

For the woman who had made some financial contribution to the purchase, even though she was not named as legal owner, the commission recommended that she could apply to the court for the home to be sold and get her share of the proceeds of sale. If the commissioners had stopped at this they would merely have clarified the current law in tying the claimant’s share to her financial contributions and not, as judges like Denning would have preferred, to some community-type principle (para 678).⁵⁰ But paragraph 678 offers a surprise: it suggests that, where a mortgagee seeks possession, a wife who has contributed financially should be able to request an order for sale and the court would ‘have the widest discretion to deal with the matter as it thinks fit’ (my emphasis). While it would have to ‘hav[e] regard to the respective contributions of husband and wife to the purchase price of the house’, it would not (it seems) be confined to a strict arithmetical calculation, as the following sentence confirms: ‘The court should, for instance, be able to order the husband to convey his interest to the house on such terms as it thinks just and reasonable’ (my emphasis).⁵¹ This proposal would seem to prefigure the provisions in the Matrimonial Proceedings and Property Act 1970 that allowed property transfers on divorce for the first time, premised on a wider set of principles than actual money spent.⁵²

Finally, in a gesture to formal equality that bore little relation to the actual problem, the commission suggested that all these proposals should apply to deserted husbands as well as wives (para 702).

This summary of the Royal Commission’s consideration of the family home shows how seriously they took the feminist concerns about the position of deserted wives. The problem they faced, however, was that they were trying to do the impossible – to reconcile two contradictory principles, the one that linked married women inexorably to homemaking, and the other that linked property to men.

Maintenance Orders Act 1958

After the Royal Commission’s failure to recommend comprehensive marriage reform, the new feminists decided to abandon large-scale measures in favour of piecemeal reform that might have a better chance in Parliament. The Maintenance Orders Act 1958 started life as a private member’s Bill sponsored by the Married Women’s Association and introduced by Joan Vickers (Liberal, Plymouth Davenport).⁵³ In a remarkable departure from the Royal Commission’s decisive rejection of the idea that maintenance payments could be secured on men’s earnings, it was then taken up by the government, largely (Jean Mann tells us) because otherwise the women unable to receive their maintenance would be thrown on to National Assistance.⁵⁴ Three Labour members supported the Conservative Home Secretary introducing the Bill,⁵⁵ which empowered courts to secure the payment of maintenance on a man’s property, to set aside any transactions made to avoid the payment, or to order compensation if it had gone beyond recall, and to make provision for an ex-wife on a deceased’s intestacy. Fiercely opposed by the Bar,⁵⁶ always resentful when lucrative work was taken out of their hands,⁵⁷ this hugely beneficial measure for divorced wives struggling to wrest maintenance from their ex-husbands (of whom 3000+ per year went to prison rather than pay maintenance)⁵⁸ would go down in history as a progressive government reform, but clearly owed its origins to feminist campaigning.⁵⁹

In the same year, both the Married Women’s Association and the Council of Married Women prepared Bills, the one for joint property and the other for allowances to married women, but neither was taken up.⁶⁰ Meanwhile, divorce law reform faded from view.

Lessons from the 1950s

What does this discussion tell us about divorce law reform in the 1950s? First and foremost, it demonstrates how often feminists have to expend energy on topics that are not of their choosing, responding to masculine agendas instead of leading with their own. It tells us that, for most men then and afterwards, what mattered was the form and grounds of divorce and the arguments for and against its extension, while for most women, even those who supported easier divorce, it was the financial consequences of divorce – which men did their best to avoid. Oliver McGregor, for example, dismisses the lack of engagement with these issues in his Divorce in England with the statement that ‘All these real disadvantages could easily, and ought to, be removed by legislation. Their existence is not a good reason for preserving the doctrine of matrimonial offence.’⁶¹

The debates show how feminists understood that restricting women’s access to property is one of the main ways in which men have maintained women’s subordination and men’s power over them. As lawyer Erna Reiss wrote in 1934,

You may tell a married woman that … she now enjoys equality with her husband in respect of rights of citizenship and of property and of parenthood. But if she has no income of her own and is prevented by the burden of family cares or jealousy of male competitors from earning one, she may find her legal equality but a fleshless bone. The economic dependency of the married women is the last stronghold of those who, consciously or unconsciously, prefer women in subjection, and that perhaps is why the stronghold is proving so hard to force.⁶²

Such words, from an equal-rights feminist, show just how much divorce law reform without adequate provision for discarded wives was opposed by 1950s feminists, who observed that such provision, or indeed whether it could ever be adequate, was all too often absent from the discussion.

Parliamentary debates and the Royal Commission Report show how deeply resistant many men were to any legal requirement to share their property with their wives after divorce or even during marriage. Trade unions were wedded to the ‘family wage’ for the working man, making life just as difficult for the equal-rights feminists campaigning for equal pay as for the new feminists who favoured income-sharing in marriage. As Albie Sachs and Joan Hoff Wilson pointed out in their analysis of court decisions affecting women’s claims, the legally trained men who dominated Parliament and the courts were quick to couch their objections in legal terms that served as excuses for masculine self-interest.⁶³ So these men opposed the new feminists’ proposals ostensibly because the law should not intervene in domestic life, because it would be impracticable or impossible to enforce or would create a slippery slope, because it would call into question established principles of law, because it encroached too far on established (read: men’s) property rights. A male barrister MP in the Women’s Disabilities Bill 1953 debates declared that ‘this Bill ought … to be called the Married Women’s Rights of Bringing in Third Parties Who Have Nothing To Do With It Bill [or] the Employers’ Further Irritation Bill’.⁶⁴ Of course feminists saw through this ploy: and Edith Summerskill called them on it in the parliamentary debate on the first Women’s Disability Bill:

Do these hon. Gentlemen come here on a Friday because they have an interest in reform? Do they come here because they know anything about women’s grievances at all? … They are here now as astute politicians, with legal qualifications, determined so far as possible to obstruct this Bill.⁶⁵

However universal these feminist understandings and patriarchal responses were, there is also something quite time-specific about the 1950s debates on divorce law reform. What stands out clearly to modern eyes is the immunity from challenge of the husband-breadwinner/wife-homemaker paradigm, despite the fact that this was the very factor that made divorce law reform such a problem. Even where it was recognised that increasing numbers of married women were in paid employment, no one suggested that they should be relieved of their homemaking duties.⁶⁶ It was not that feminists did not imagine alternatives: Erna Reiss, for example, remarked wistfully that ‘Some day society may be so organized that it will become possible for men and women to share domestic responsibilities.’⁶⁷ But as a policy it was impossible to pursue in the 1950s.

Even less thinkable then was the naming of marriage itself as a problem.⁶⁸ Indeed, the threats voiced by opponents of reform, that making divorce easier to obtain would lead to the ‘end of marriage’, drew their power from the notion that such a thing was very frightening. The primacy accorded to marriage, even in an era of public concern over its breakdown, is again specific to this point in time. There had been critiques in the nineteenth and early twentieth centuries, yet during the interwar years marriage recovered its seemingly inviolable status.⁶⁹ First-wave feminists had perhaps entertained the hope that once the worst features of coverture had been removed, marriage could become a true and equal union.⁷⁰ By the 1950s almost all those abhorrent features had gone, but they had been replaced by social norms of equal strength – and equality remained elusive.

Jane Lewis suggests that the policymakers of the 1950s were motivated by a desire to transform marriage rather than abandon it.⁷¹ Yet there is little evidence in the sources here of any impulse to transform the institution: instead, the goal seemed to be to retain its principal features but help husbands and (especially) wives to adjust to them. Marriage Guidance bureaux proliferated in this decade ‘with an expanding clientele of all ages and classes’⁷² and, in spite of the male sociologists’ persuasive descriptions of increasingly ‘companionate’ marriages,⁷³ by 1959 one-third of cases dealt with by the Marriage Guidance Council were founded on disappointment (mostly the woman’s) over the failure of a marriage to live up to expectations.⁷⁴ It was left to second-wave feminists in the 1970s and 1980s to identify marriage as a major site of women’s subjection and whose analyses, aided by the spectacular rise in divorce after the 1969 reform, led to a decline in the marriage rate that has never abated.⁷⁵

The discussions here illustrate the truism that feminists in any given era do not all think alike; there has never been a single feminist viewpoint, and not only do feminists take a range of positions on most issues, they are often at odds with one another. The first Bill for divorce law reform in the 1950s was put forward by a feminist MP, but what she and her supporters saw as progressive and beneficial was seen by other feminists as profoundly damaging to women. What also emerges is the shortcomings and limitations of both equal-rights feminism and new feminism in respect of divorce law reform. The absence of thought-through provisions for ex-wives’ financial support exposed the weakness of Mrs White’s 1951 Bill and the equal-rights feminists’ approach of asserting formal equality and choice for women at a time when substantive equality and choice so obviously did not exist for most of them. But the protectionist approach of the new feminists did not serve women well either: in spite of its efforts to elevate the role and financial security of women within marriage, new feminists still positioned women as needy and dependent, a representation that riled equal-rights feminists who had managed to achieve a measure of independence.

Worse than this, the new feminism institutionalised women’s dependence, both on husbands and on the law. This was a major weakness since, just as husbands could not be trusted to do the right thing, so the law and its officers could not be relied on to do justice to women. It was an unfortunate truth that the women on whose behalf the new feminists spoke really were dependent; dependence was built into their approved role as homemakers, and for most women there were no realistic alternatives. Yet this dependence, enforced as it might have been, was often resented by the very men who benefited from it. Victim-blaming was rife in the debates, with men telling women whose husbands failed to support them or left them that it was their fault for choosing the wrong husband. In the debates on the Women’s Disabilities Bill 1952, bachelor Philip Bell MP (Conservative, Bolton East) declared that ‘Unhappy wives should just leave husbands, not ask for money.’⁷⁶

But the world was changing. By the end of the decade, there was greater acceptance of both married women working (most marriages, Hopkins claimed, were founded on double savings and income)⁷⁷ and divorce (a majority of the public thought Princess Margaret should have been allowed to marry Captain Townsend).⁷⁸ Having some money of their own, argues Helen McCarthy, empowered working wives and inevitably, as men failed to adjust, threatened and indeed broke up more marriages.⁷⁹ ‘If the architecture of marriage had always stood upon a foundation of female subordination’, concludes Virginia Nicholson, ‘by the 1950s it was beginning to look a little shaky’.⁸⁰

Conclusion

Every era is characterised by a particular set of norms and assumptions and it is difficult in any given period to remove oneself from that mindset and imagine a different set of norms and assumptions. In 1950s Britain it was well-nigh impossible to envisage a society like our present one in which marriage is no longer a woman’s primary goal, homemaking duties are not solely the responsibility of wives, cohabitation is perfectly acceptable and illegitimacy not only not shameful but conceptually non-existent. Likewise, it is difficult for us today to imagine a future society in which women might have just as much money, property and freedom of action as men do, in which they are not still hindered in that pursuit by sex discrimination, unequal pay, violence and abuse and, above all, responsibility for caregiving. The equal-rights feminists looked towards this world, in which a person’s sex would make no difference to his or her access to education, work or property. The new feminists, meanwhile, took society as they found it, with dependence embedded in women’s different role. The dilemma that still divides feminists is whether to work for structural reforms that should benefit all women in the long run but leave many female victims of the old regime’s abandonment, or to try to protect those victims here and now, and so help to sustain the unjust and unequal regime.

Notes

1. 1. Roderick Phillips passes over the 1950s with a brief statement ‘during the 1950s social attitudes were generally conservative’. Putting Asunder: A History of Divorce in Western Society (Cambridge: Cambridge University Press, 1988), 618. Lawrence Stone, Road to Divorce 1530–1987 (Oxford: Oxford University Press, 1990) ignores the decade altogether.

2. 2. Starting with Dale Spender, There’s Always Been a Woman’s Movement This Century (London: Pandora, 1983).

3. 3. O.R. McGregor, Divorce in England (London: Heinemann, 1957), 196.

4. 4. For example, Allen Horstman, Victorian Divorce (London: Croom Helm, 1985); Mary Lyndon Shanley, Feminism, Marriage, and the Law in Victorian England 1850–1895 (Princeton University Press, 1989); Joan Perkin, Women and Marriage in Nineteenth-Century England (London: Routledge, 1989).

5. 5. Dorothy M. Stetson, A Woman’s Issue: The Politics of Family Law Reform in England (Westport, CT: Greenwood Press, 1982).

6. 6. ‘Matrimonial Causes Act 1923’, in Women’s Legal Landmarks: Celebrating the History of Women and Law in the UK and Ireland, ed. Erika Rackley and Rosemary Auchmuty (Oxford: Hart, 2019), 189–94; ‘Matrimonial Causes Act 1937’, in Women’s Legal Landmarks in the Interwar Years: Not for Want of Trying, ed. Rosemary Auchmuty, Erika Rackley and Mari Takayanagi (Oxford: Hart, 2024), 235–42.

7. 7. Sharon Thompson, Quiet Revolutionaries: The Married Women’s Association and Family Law (Oxford: Hart, 2022).

8. 8. Stephen Cretney, Law, Law Reform and the Family (Oxford: Oxford University Press, 1998).

9. 9. Stephen Cretney, Family Law in the Twentieth Century: A History (Oxford: Oxford University Press, 2003).

10. 10. For a more detailed explanation of feminist legal history, see Erika Rackley and Rosemary Auchmuty, ‘The Case for Feminist Legal History’, Oxford Journal of Legal Studies 40 (2020): 878–904.

11. 11. Matrimonial Proceedings and Property Act 1970. See Rosemary Auchmuty, ‘Feminism, Property and Divorce Law Reform in the 1960s’, in Fifty Years of the Divorce Law Reform Act 1969, ed. Joanna Miles, Daniel Monk and Rebecca Probert (Oxford: Hart, 2022), 75–96.

12. 12. Royal Commission on Marriage and Divorce (1951–55), Report (Cmd 9678: Her Majesty’s Stationery Office, 1956), 357.

13. 13. Royal Commission on Marriage and Divorce (1951–55), Report (Cmd 9678: Her Majesty’s Stationery Office, 1956), 357.

14. 14. Griselda Rowntree and Norman H. Carrier, ‘The Road to Divorce in England and Wales 1858–1957’, Population Studies 11 (1958): 211.

15. 15. HC Deb 9 March 1951 vol. 485 c926 (numbers in parentheses in the text in the rest of this chapter refer to paragraph numbers from this source).

16. 16. Glanville Williams (ed.), The Reform of the Law (London: Gollancz, 1951), 142.

17. 17. Numbers of divorces in England and Wales steadily increased from 1958 until 2022, when the number fell below that of 1971 for the first time. This was probably due to the fact that the marriage rate had fallen from a high point in 1972 of 84 (men per 1000) and 63.5 (women per 1,000) to a low of 20.3 (men) and 18.3 (women) in 2022, so there were now fewer marriages to dissolve. National Office for Statistics, Divorces in England and Wales 2022 (22 February 2024); Marriages in England and Wales 2021 and 2022 (20 June 2024).

18. 18. Jean Mann, Woman in Parliament (London: Odhams, 1962), 27.

19. 19. David Lewis Jones, ‘White, Eirene Lloyd, Baroness White’, in Dictionary of Welsh Biography. https://biography.wales/article/s6-WHIT-LLO-1909, accessed 19 December 2024.

20. 20. Of course, as her husband had been divorced a church wedding might not have been available.

21. 21. But both women interestingly, had supported their widowed mothers. Jones, ‘White. Eirene Lloyd’. Godfrey Winn, The Queen’s Countrywomen (London: Hutchinson, 1954), chapter 3, ‘Our Pat’.

22. 22. Winn, The Queen’s Countrywomen, n21, 40.

23. 23. Winn, The Queen’s Countrywomen, 37.

24. 24. A procedure for presuming the death of a spouse after seven years of absence, dissolving the marriage, existed under s 16 of the Matrimonial Causes Act 1950. One can only assume that the woman was unaware of it or unable to satisfy the conditions for the court to exercise its discretion.

25. 25. ‘[W]earing a black costume’, the Manchester Evening News tells us, whether in conformity with the press’s usual practice of commenting on women MPs’ dress, or to suggest that Mrs White was in mourning for the loss of her Bill.

26. 26. 13 April 1951.

27. 27. Phyllis Whiteman, Speaking as a Woman (London: Chapman and Hall, 1953), 66.

28. 28. Edith Summerskill, A Woman’s World (London: Heinemann, 1967). See Thompson, Quiet Revolutionaries, 167–70.

29. 29. It is of course ironic that neither herself occupied this role.

30. 30. Thompson, Quiet Revolutionaries, 161.

31. 31. Thompson, Quiet Revolutionaries, 134. The undue influence in mortgage cases of the later twentieth century bear out the truth of her prediction.

32. 32. ‘Observer’, Portrait of Eirene White, Liverpool Daily Post, 27 November 1967.

33. 33. Summerskill, A Woman’s World, 41.

34. 34. Daily News (London), 1 March 1951.

35. 35. HC Deb 25 April 1952 vol. 499 c899.

36. 36. HC Deb 8 May 1953 vol. 515 c807.

37. 37. Blackwell v. Blackwell [1943] 2 All ER 579.

38. 38. ‘Divorce Law Reform?’ Modern Law Review, 19 (1956) 578–600.

39. 39. Catriona Beaumont, Housewives and Citizens: Domesticity and the Women’s Movement in England, 1928–64 (Manchester: Manchester University Press, 2013), 202.

40. 40. Royal Commission, Summary of Recommendations Part IV, 313.

41. 41. Florence Earengey, A Milk-White Lamb: The Legal and Economic Status of Women (National Council of Women of Great Britain, rev. ed. 1953), 36–7, instancing the result in Rimmer v. Rimmer [1953] 1 QB 63 where the wife should have got more than half.

42. 42. Law of Property Act 1925, s36.

43. 43. Married Women’s Property Act 1964.

44. 44. HC Deb 25 April 1952 vol. 499 c943.

45. 45. The percentage of married women in paid employment had increased from 26 per cent to 35 per cent between 1951 and 1961. Jane Lewis, Women Since 1945 (Oxford: Basil Blackwell, 1992), 65.

46. 46. Re Rogers’ Question [1948] 1 All ER 328.

47. 47. H v. H [1947] 62 TLR 645.

48. 48. Married Women’s Property Act 1882, s 17.

49. 49. Matrimonial Homes Act 1967.

50. 50. Rimmer v. Rimmer [1953] 1 QB 63.

51. 51. Para 678.

52. 52. And still in force today, Matrimonial Causes Act 1973, s 25.

53. 53. HC Deb 16 April 1958 vol. 208 cc758–78.

54. 54. Mann, Woman in Parliament, 32.

55. 55. Lena Jeger (Holborn & St Pancras South), Freda Corbet (Camberwell North) and John Parker (Dagenham).

56. 56. Olive Banks, The Politics of British Feminism, 1918–1970 (Aldershot: Edward Elgar, 1993), 59.

57. 57. Cretney, Family Law in the Twentieth Century, 285.

58. 58. Cretney, Family Law in the Twentieth Century, 324.

59. 59. Thompson, Quiet Revolutionaries,169.

60. 60. Stetson, A Woman’s Issue, 171–2.

61. 61. McGregor, Divorce in England, 149.

62. 62. Erna Reiss, Rights and Duties of Englishwomen: A Study in Law and Public Opinion (Manchester: Sherratt & Hughes, 1934), viii–ix.

63. 63. Albie Sachs and Joan Hoff Wilson, Sexism and the Law: A Study of Male Beliefs and Judicial Bias (Oxford: Martin Robertson, 1978).

64. 64. Charles Doughty (Conservative, East Surrey) in the Women’s Disabilities Bill 1953 HC Deb 8 May 1953 vol. 515 c835.

65. 65. HC Deb 25 April 1952 vol. 499 c907.

66. 66. Alva Myrdal and Viola Klein, Women’s Two Roles (London: Routledge, 1956).

67. 67. Reiss, Rights and Duties of Englishwomen, 79.

68. 68. Exceptionally, C.P. Harvey, ‘On the State of the Divorce Market’, Modern Law Review 16 (1953): 187 did question the need for marriage.

69. 69. For example, Cicely Hamilton, Marriage as a Trade (London: The Women’s Press, [1909] 1981).

70. 70. For example, Mona Caird, The Morality of Marriage (London: George Redway, 1897).

71. 71. Lewis, Women Since 1945, 5.

72. 72. Harry Hopkins, The New Look: A Social History of the Forties and Fifties (London: Secker & Warburg, 1964), 141.

73. 73. Michael Young and Peter Willmott, Family and Kindship in East London (London: Routledge and Kegan Paul, 1957).

74. 74. Peter Lewis, The Fifties: Portrait of a Period, 2nd ed. (London: Cupid Press, 1989), 65.

75. 75. For example, Carol Smart, The Ties That Bind (London: Routledge, 1994).

76. 76. HC Deb 25 April 1952 vol. 499 c951.

77. 77. Hopkins, The New Look, 201.

78. 78. Brian Harrison, Seeking a Role: The United Kingdom 1951–1970 (Oxford: Clarendon Press, 2009), 296.

79. 79. Helen McCarthy, ‘Women, Marriage and Paid Work in Post-War Britain’, Women’s History Review 26 (2017): 48.

80. 80. Virginia Nicholson, Perfect Wives in Ideal Homes: The Story of Women in the 1950s (New York: Viking Penguin, 2015), 205.

Selected bibliography