DivorceData in England and Wales: Gender Differences
Dr. Ruth Gaffney-Rhys, University of Wales, Newport
Keywords: Divorce, Statistics, Gender, Trends
In December 2011, the Office for National Statistics released the most recent data relating to divorce in England and Wales (ONS, December 2011). In 2010 the number of divorces rose by 4.9% to 119,589 compared with 113,949 the previous year. This was the first time that the number of divorces had increased since 2003 and may be associated with the recession. Prior to this, the number of divorces granted each year had steadilyrisen since the 1930s, with two significant increases occurring in the late 1940s and the 1970s. The first of these ‘is considered to be attributable to women’s increased participation in the labour force which meant couples were no longer financially dependent on each other’ (ONS, December 2011, pg. 2). The second and largest increase in divorces took place in the 1970s after the Divorce Reform Act 1969 came into force on 1st January 1971. This legislation, which will be discussed below, made it easier for couples to terminate their marriage.
The History of Divorce Law
Prior to 1857, divorce was not available in the civil courts, although a decree of nullity (which sets aside a defective marriage) and judicial separation (which allows the parties to separate but does not dissolve the marriage) could be obtained in the ecclesiastical courts. It was, however, possible to dissolve a marriageby Act of Parliament, but the cost associated with this process meant that divorce was only available to the wealthy. Up until 1804, no divorce by private Act of Parliament had been granted to a woman and after this date, only fourwomen successfully obtained a divorce using this procedure (Shanley, 1986, pg. 36). This was partly due to the expense involved, but also because it was more difficult for women to establish the ground for divorce. A man could apply for dissolution based on his wife’s adultery alone, whereas a woman could only be granted a divorce on the basis of her husband’s adultery if she could also prove aggravating circumstances e.g. the adultery was incestuous (Shanley, 1989, pg. 36).
The Matrimonial Causes Act 1857 enabled spouses to obtain a divorce through the civil courts, rather than by Act of Parliament. The ground for divorce contained in the Act was the same as the ground that needed to be established to obtain a private Act of Parliament. The legislation thus retained the distinction between husbands and wives and as a consequence, it remained difficult for women to divorce their husbands. This state of affairs continued for over sixty years, until the Matrimonial Causes Act 1923 removed the need for a female petitioner to establish that her husband’s adultery was aggravated (See Herring, 2011).
The Matrimonial Causes Act 1937 added three further grounds for divorce, namely; cruelty, desertion and incurable insanity. Divorce thus became more common, as it was no longer limited to those whose spouse had committed adultery. The Legal Aid and Legal Advice Act 1949 introduced legal aid, which assisted the many women who wished to divorce their husbands but lacked the financial means to instruct a solicitor. During the 1960s divorce became more socially acceptable and there were calls to reform the law. This was achieved by the Divorce Reform Act 1969, which came into effect in 1971 and was later incorporated into the Matrimonial Causes Act 1973. The legislation revolutionised divorce in England and Wales by introducing dissolution based on separation and consent.
The Current Law of Divorceand Related Trends
Section 1(1) of the Matrimonial Causes Act 1973 provides that a petition for divorce can be presented ‘on the ground that the marriage has broken down irretrievably.’ Although irretrievable breakdown of marriage is the sole ground for divorce, it is necessary to establish one of five facts in order to prove that the marriage has broken down. The facts, whichare listed in section 1(2) of the Matrimonial Causes Act 1973, are: adultery, behaviour, desertion, two years’ separation with consent and five years’ separation.The introduction of divorce based on two years’ separation with consent and five years’ separation is responsible for the sharp increase in divorces granted in the 1970s, referred to earlier in this paper.
Since the Divorce Reform Act 1969 came into force, the number of divorces granted to women has far exceeded the number of divorces granted to men. This reached a peak in 1992 when 72% of divorces were in favour of the wife. The proportion of decrees granted to women has fallen over the last twenty years and current data reveals that 66% of divorces were made in favour of the wife (ONS, December 2011). Despite this slight decrease, it is clear that significant numbers of women are prepared to terminate an unhappy marriage.
Section 1(2)(a) of the Matrimonial Causes Act 1973 provides that a marriage has broken down irretrievably if ‘the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent’.It is clear that adultery alone is insufficient, as the petitioner must also establish that he or she finds it intolerable to live with the respondent. The inability to live with the respondent does not need to be due to the adultery itself, which reflects the view that adultery is often a symptom of a broken marriage rather than the cause of it. In 2010 16% of divorces were based on adultery. 15% of divorces granted to women and 16% of divorces granted to men were based on adultery in this particular year (ONS, December 2011). Since the Divorce Reform Act 1969 came into force, it has become less and less common to cite adultery in a divorce petition. For example, in the year 2000, 29% of divorces granted to women and 22% of divorces granted to men were as a result of the respondent’s adultery, whilst in 1987 the figures were 45% and 25% respectively.
Under section 1(2)(b) of the Matrimonial Causes Act 1973 irretrievable breakdown of marriage occurs if ‘the respondent behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent’.‘Behaviour’ replaced ‘cruelty’ which had been a ground for divorce since the Matrimonial Causes Act 1937. In 2010, 48% of divorces were due to the respondent’s behaviour, which makes behaviour the most common fact upon which to base a divorce. 36% of divorces granted to men and 55% of divorces granted to women were based on behaviour which is higher than ever before (ONS, December 2011). It is the fact most commonly cited by male and female petitioners, but is clearly utilised by women far more than men.
The third fact upon which a divorce can be based is desertion, which has formed part of the law of divorce since the Matrimonial Causes Act 1937.
Section 1(2)(c) indicates that a divorce can be granted if ‘the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition.’ Desertion is the unjustified withdrawal of cohabitation, without the consent of the other spouse, with the intention that the separation will be permanent. Less than 1% of divorces are based on this fact, with almost equal numbers of male and female petitioners (ONS, December 2011).
Section 1(2)(d) of the Matrimonial Causes Act 1973 provides that a marriage has broken down irretrievably if ‘the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consents to a decree being granted’.The inclusion of this fact constituted a radical change to the law of divorce, as it enabled spouses to terminate their marriage on the basis of mutual consent for the first time. In 2010,25% of divorces were based on two years’ separation, which makes it the second most common fact after behaviour (ONS, December 2011). Its use has remained relatively stable since 1970.Two years’ separation is noticeably more popular amongst male petitioners than female petitioners, as 32% of divorces granted to men were based on this fact compared with 21% of decrees granted to women. Two years’ separation is almost as popular as behaviour amongst male petitioners. In contrast, the number of divorces based on the respondent’s behaviour far exceeds those based on two years’ separation, if the petitioner is female.
The final fact upon which a divorce can be based is five years’ separation.
Section 1(2)(e) of the Matrimonial Causes Act 1973 states that irretrievable breakdown of marriage occurs if ‘the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition’.Unlike divorce based on two years’ separation, the respondent does not have to consent to the decree. This means that an individual can leave an innocent spouse and divorce him or her against his or her will, provided that the couple have lived apart for five years. Prior to the Divorce Reform Act 1969, an innocent spouse could only be divorced in the case of incurable insanity. In 2010, only 10% of divorces were based on five years’ separation, a figure that has remained relatively stable since the 1969 Act came into force (ONS, December 2011). Like two years’ separation, divorces based on five years’ separation are more common if the petitioner is male. 15% of decrees granted to the husband and 8% of decrees granted to wife were based on this fact in 2010. It should be noted that the court can refuse to grant a divorce based on five years’ separation if the respondent can prove that he or she would suffer grave financial or other hardship and it would be wrong to grant the decree. Hardship was often cited by female respondents who had not worked due to their childcare and domestic responsibilities and had not therefore contributed to a private pension. Dissolving the marriage would mean that such women would lose entitlement to their husband’s pension and would not be in a position to support themselves. Since the introduction of pensionsharing orders by the Welfare Reform and Pensions Act 1999, this defence is rarely raised.
Gender Based Findings
The discussion above has demonstrated key differences between men and women in terms of divorce. It is clear that women are far more likely to instigate divorce proceedings than men, although the proportion of divorces granted to women fell by approximately 1% in 2010. Both sexes are most likely to base their petition on the respondent’s behaviour, however, the number of divorces granted to women on this basis far exceeds any other fact. In 2010, 43,186 divorces were granted to women due to their husband’s behaviour, compared with 16,966 decrees based on two years’ separation, which was the second most common fact. In contrast, 14,516 divorces were granted to men due to their wife’s behaviour. This is only 1,619 more than the number of decrees granted to men based on two years’ separation.
Further interesting gender specific data relates to the age groups amongst which divorce is most common. In 2010 women in their late twenties had the highest divorce rate of all female age groups, with 25.9 females divorcing per thousand married women aged 25-29. According to the Office for National Statistics, this ‘continues the general pattern seen over the last two decades’ (ONS, December 2011, pg. 5). In contrast, men in their early thirties had the highest divorce rate in 2010 with 22.5 males divorcing per thousand married men aged 30-34. This constitutes a trend change, because in 2009, rates for men aged 25 to 29 and 30 to 34 were equal highest and between 2006 and 2008 men aged 25 to 29 had the highest divorce rate (ONS, December 2011).
The mean age for men divorcing in 2010 was 44.2 years, which is an increase from 44.0 in 2009 (ONS, December 2011). For women, the mean age at divorce was 41.7 years in 2010 and 41.5 in 2009. The Office for National Statistics points out that the difference between the mean age of husband and wife at divorce has remained at approximately 2.5 years since 1970. The difference between the sexes in terms of mean age at divorce reflects the fact that the mean age for marriage is higher for men than women. In 2009 the mean age for men at first marriage was 36.3 years compared with 33.7 years for women (ONS, March 2011). In 2006, the figures were 31.8 for men and 29.7 for women respectively. Men and women are therefore delaying marriage, which contributes to the increase in the mean age for divorce for both sexes. The mean age at divorce will also be affected by the median duration of marriage. In 2010 the median duration of marriage was 11.4 years, which was unchanged from 2009, but constitutes an increase since 2000, when the median duration was 10.7 years (ONS, December 2011).
Conclusion
The Statistical Bulletin on Divorce in England and Wales 2010 presents interesting data from a gender perspective, some of which reflects ongoing trends. It remains the case that women are far more likely to be granted a divorce than men. However, the proportion of decrees granted to women fell slightly in 2010, which continues a trend that began in the 1980s.The mean age at divorce rose in 2010 for men and women, which is unsurprising as the mean age at marriage has also risen. Women in their late twenties had the highest female divorce rate, whilst men in their early thirties had the highest male divorce rate. The position is relatively unchanged for women but the data relating to men constitutes a trend change, as the age group with the highest divorce rate was 25-29 between 2006 and 2008. It will be interesting to observe whether these patterns will continue over the next decade.
REFERENCES
Office for National Statistics. 2011. Divorce in England and Wales 2010. Statistical Bulletin. December 2011.
Office for National Statistics. 2011. Marriage in England and Wales, 2009. Statistical Bulletin. March 2011.
Herring, J. 2011. Family Law. Pearson Education.
Shanley, M.L. 1989. Feminism, Marriage and the Law in Victorian England. I.B. Tauris & Co. Ltd. London.
Legislation
Divorce Reform Act 1969
Legal Aid and Legal Advice Act 1949
Matrimonial Causes Act 1857
Matrimonial Causes Act 1923
Matrimonial Causes Act 1973
Welfare Reform and Pensions Act 1999