CHAPTER 2

WHERE HAVE WE COME FROM: AN HISTORICAL OVERVIEW

Floundering through my adolescence as a collaborative practitioner, I have often wanted a framework, a set of guidelines, or some protocols to help steady myself in difficult moments. Unable to pluck new systems or skills from the future, I have looked to the past; not from any desire to repeat or rebuild the past, but in an attempt to create an understanding of where we have come from and where we may be headed. How have our attitudes towards divorce changed in the past 150 years? How about the laws and procedures governing divorce? And what of people’s lives? Our hopes and dreams, our loves and disillusionments; are they so different from those of 150 years ago?

The personal marital landscapes have changed at a different pace and in a different manner than the legal landscape of statute and judicial opinion. There have always been marriages that nurtured both spouses and provided safe, cohesive economic units within which healthy children were raised. There have always been marriages that failed to fulfill the dreams and longings of either spouse; marriages where intimacy turned to abuse, where children found themselves at the centre of their parents’ conflict, where one spouse walked out the door and did not return, or where a spouse turned to someone else for affection. There have always been marriages that are “good enough”—marriages that held together through good economic times and through times when the bread was cut in thinner slices; marriages that sustained times of romance and the joy of a new child, and also times of disillusionment and the daily chaos of family life; marriages where spouses chose to live with each other’s neuroses, and did their best to shepherd their children into adulthood. From our egocentric lens at the beginning of the twenty-first century, we sometimes forget that the human heart is terrain that has remained fairly constant through the centuries and across diverse cultures.

What has changed more radically over the past 150 years are political attitudes towards divorce, our legal statutes, and judicial opinion. An historical overview of divorce helps to provide a context within which we can assess and transform our handling of the process and substance of divorce. Where have we been? Where are we now? And where are we headed? What is it that we want—in process, in substantive outcomes (both for spouses and children)? And what role does divorce play in the daily tapestry of people’s lives?

WHERE WE HAVE BEEN

A review of the historical framework of divorce highlights the role of gender, class, property, wealth distribution, and punishment in informing both attitudes and laws to do with divorce. These themes have continued to influence political and public discourse on divorce and have helped to form building blocks for the construction and interpretation of the legal framework of divorce.

Prior to 1857, the only divorces available in England were obtained through the Ecclesiastical Courts. These divorces severed all the rights and obligations of marriage, but did not end the marriage itself; so the spouses were not free to remarry. This was a divorcea mensa et thoro, and commonly referred to as divorce of bed and board.

Since there was no statute allowing the dissolution of the marr