Law and practice in the 1960s: (3) Family Law (1964-1977)

 

When I started to practise at the Bar in 1964, there was no such thing as family law. If it was called anything, it was called “divorce law” (which was one of the optional topics in the Bar Final exams). The High Court had exclusive jurisdiction to hear all matters connected with a divorce, and the magistrates’ courts were given statutory jurisdiction to deal with disputes over custody and access, or disputes about maintenance or affiliation when divorce was not in contemplation.

Until the reforms that took place later in the decade, the county court’s jurisdiction was largely limited to issues that fell to be decided under section 17 of the Married Women’s Property Act (MWPA) 1882. Although the jurisdiction of county court registrars (as district judges were then called) was limited, I think, to £10 in claims for damages or debt, they had unlimited jurisdiction in MWPA applications, with any appeal from their orders lying direct to the Court of Appeal.

The Family Division of the High Court did not then exist. The Probate, Divorce and Admiralty Division, headed by its President, was the place where divorce petitions were filed, either in the Divorce Registry in London or in a number of designated District Registries of the High Court outside London. The Incorporated Council of Law Reporting (ICLR) reported the cases in its Probate series of law reports, alongside Admiralty Court cases and cases concerned with disputed wills or intestacy. There were no specialist Family Law reports, and the Law Reports (including the Weekly Law Reports) and the All England Law Reports (edited by Butterworth’s) tended to report cases where new law was being established, as opposed to examples of the application of well-established law which tend to fill the specialist law report series when they started to be published.

At the same time the Chancery Division retained the historic jurisdiction of the Lord Chancellor in wardship matters. Although the Lord Chancellor no longer administered this jurisdiction himself (and the office of Vice-Chancellor was not revived until the jurisidictional reforms that created a freestanding Family Division) not very much had changed since W.S.Gilbert’s Lord Chancellor sang in Iolanthe:

And every one who’d marry a Ward

Must come to me for my accord,

And in my court I sit all day,

Giving agreeable girls away,

With one for him — and one for he —

And one for you — and one for ye —

And one for thou — and one for thee —

But never, oh, never a one for me!

Which is exasperating for

A highly susceptible Chancellor!”

The age of majority was still 21 until a committee headed by Mr Justice Latey (which contained the journalist Katherine Whitehorn among others) produced a remarkably well-written report[1] which persuaded Parliament to lower that age until 18.  Anyone under the age of 21 was regarded by the law as an infant, and when we learned contract law we were taught that an infant could only be legally bound by a contract for necessities. I once settled a defence for an impoverished 20-year old who was disinclined to pay the very large debt outstanding on his new Aston Martin on the basis that it was not a necessity. It was made clear to Guards Officers that officers, being gentlemen, did not descend to sophistries like this.

In practice, QCs or county court judges very frequently acted as Divorce Commissioners, particularly when cases were undefended.  Because the petitions could only be heard in the High Court, barristers had exclusive rights of audience.  There was an enormous brouhaha from divorce barristers when the Matrimonial Causes Act 1967 transferred divorce jurisdiction outside London to designated county courts, and I can think of two county court judges who went out of their way to make the lives of solicitor advocates as uncomfortable as possible in the early years after the change took place.

Adultery, cruelty and desertion for three years were the main grounds for divorce.  Orders for the restitution of conjugal rights were still, in theory available, despite the unwelcome experience of the wife in Galsworthy’s Forsyte Saga whose errant husband had insisted on returning to the fold after she had obtained such an order against him for tactical reasons.

Divorce by consent after two years’ separation, and divorce without consent after five years’ separation were not included among the grounds for divorce until the Divorce Reform Act 1969 was enacted. This Act introduced the concept of “irretrievable breakdown” which might be evidenced by adultery, unreasonable behaviour, two years’ desertion for two years or one of the two new grounds based on separation alone.

I settled quite a lot of divorce petitions in those days. In addition to setting out the fact of the marriage and the grounds for divorce (including the facts and matters relied upon), the petition had to include an assertion that the petitioner was not guilty of collusion, connivance or conduct conducing the matters complained of. In addition, the petitioner would have to file a “discretion statement” if he/she wished the court to grant the divorce notwithstanding his/her own adultery. In the period between the decree nisi and the decree absolute the Queen’s Proctor might intervene to show cause why the decree should not be made absolute.

Petitioners were still at liberty in the 1960s to claim damages (as well as costs) from a co-respondent found guilty of adultery.  Inquiry agents did a roaring (if rather boring) trade when instructed to seek out evidence of adultery.  Sometimes the evidence was handed to them on a plate by a respondent who was as keen on obtaining a divorce as the petitioner (so long as there was not any claim for damages).

Breach of promise of marriage still gave rise to a viable cause of action in the 1960s.  Although actions were rare, I appeared for the plaintiff in an action to recover a diamond engagement ring he had given to the girl who later jilted him. I think the action was heard in the Lord Mayor’s Court in the City. Representatives of both families turned out in force, and the evidence was heard in an atmosphere of unremitting hostility.  I cannot remember the outcome, and Parliament abolished this cause of action very soon afterwards.

Those were the days when Lord Denning (who could usually persuade at least one of his colleagues in the Court of Appeal to agree with him) was fighting valiantly and imaginatively for the property rights of wives when their marriages went sour.   As early as 1952 he had invented a concept known as the deserted wife’s equity[2] which, he said, entitled a wife to remain in the matrimonial home until a court was satisfied that suitable alternative arrangements were made for housing her – and, usually, also the children of the family.  Mortgagors – building societies, for instance – were not at all happy about this novel equity, but it was not until 1965 that the House of Lords ruled[3] that such an equity had never existed until Lord Denning invented it.  Parliament then intervened with the Matrimonial Homes Act 1967, the first instalment of legislation concerned with the right to reside in the matrimonial home.  This could now be protected by registering a charge at the Land Registry.

Lord Denning also interpreted section 17 of the MWPA as giving the courts not only the right to declare the size of the parties’ respective shares in matrimonial property, but also to adjust them so as to provide the wife for a fairer outcome. He introduced into the law the concept of “family assets”, with a prima facie inference that such assets belonged to each spouse equally.   These efforts , too, received short shrift in the House of Lords in the cases of Pettitt v Pettitt (1969) and Gissing v Gissing (1970).

Dicta in that case then led to Lord Denning being willing to find that the wife could benefit from an implied, or resulting, or constructive, trust whenever the justice of the case seemed to demand it. During this period I appeared in his court as counsel for the former wife in Hargrave v Newton[4] on 15th July 1971 when he relied on a passage in Lord Reid’s dissenting speech in Gissing to uphold the favourable ruling I had obtained from a divorce registrar.

My client had found some of the money stolen in the Great Train Robbery in a hiding place on Leith Hill, and had spent the reward of £5,045 on items the couple could not otherwise have afforded – she already paid for some of the family expenses out of her salary – while her husband continued to pay the mortgage instalments and little else. With my encouragement Lord Denning applied this test:

“Did the wife make a substantial contribution direct or indirect to the acquisition of the house or the repayment of the mortgage or the loan? If her efforts or her contributions relieved him of other expense which he would otherwise have had to bear – so that he would not have been able to meet the mortgage instalments or the loan without her help – then she does make an indirect contribution.”

This decision was frowned on by academics,[5] and when Mr Justice Bagnall, a former Chancery silk, came to analyse all the decisions of the Court of Appeal during this period[6], he found that all except Hargrave v Newton could be regarded as legitimate applications of trust law. My case, however, he found hard to understand. Perhaps it was the advocate wot won it.

The implementation of section 37 of the Matrimonial Proceedings and Property Act 1970 put an end to this spate of litigation, because the courts now had an express power to adjust the partners’ shares in property if it was just to do so.

This was not the only occasion when I was concerned with disputes over matrimonial property. Very often the answer depended on a judicial finding that a particular item had been bought by one party or another.

I remember a day at Brighton when the parties had agreed on the divorce, the arrangements for the children, the maintenance payments and the respective entitlements to the proceeds of the same of their former home, but they were irretrievably at loggerheads over the destiny of the knight in armour who held up the fire-tongs.  Each could remember, as though it was yesterday, the day that he/she had bought it with his/her own money. The local registrar – Mr Registrar Hankinson – was very happy to give us as much time as we wanted to try and settle the matter (I remember we gave him permission to go out shopping at one stage), and eventually, after more than two hours of wrangling, my client showed that the age of chivalry had not yet departed (although there had been precious little sign of it hitherto).  Through gritted teeth he conceded the custody of the disputed knight to his former wife.

Of a lesser order of magnitude was the dispute over the destiny of an ornamental pineapple with which I was concerned at the Thame County Court on 18th November 1965: I cannot remember who won that prize.

In those days a London common law junior would try to provide a complete service to the solicitors who wished to instruct him, while diverting them to Chancery or commercial law specialists only if the issues were so esoteric that they needed the input of a specialist. In my case I went on acting in family law cases until 1977.  In earlier years they took up about 20% of my professional time, and I would often go to Canterbury or Tunbridge Wells or Southend to represent a clutch of clients (between 2 and 7 on a single day) whose undefended divorce petitions had been set down for hearing. For each appearance I would be paid £12.50 (plus £4 in each case because there was no local Bar).

In the early days of divorce based on five years’ separation I often represented clients whose marriage had broken down more than 30 years earlier. To establish the court’s jurisdiction they had to satisfy the judge that their spouse had actually been served with the divorce petition.  There was sometimes a pregnant silence which lasted for some time after I asked them if they recognised anybody’s signature on the relevant place in the court papers.  I don’t remember that anyone was ever refused an undefended divorce, but it was the lawyers’ job to make the daunting experience of having one’s marriage formally ended in court as relatively relaxing as it was possible could be.  The many cases I handled at Tunbridge Wells were sent to me by Denis Jukes, an excellent litigation solicitor in Hastings, who arranged for his clients’ cases to be heard there, as opposed to their home court, so that they could avoid, if possible, unwelcome publicity in their local paper.

I also appeared quite often in the chambers of the Divorce Registrars when they were housed in beautiful rooms on the left hand side of the courtyard at Somerset House. That would have been the venue of the first hearing in Newton v Hargrave (before Mr Registrar Kenworthy) and it was there that I first encountered Mrs Registrar Butler-Sloss (as Elizabeth Havers preferred to be known when she was appointed to this role). My contemporary fee-book shows that I appeared before High Court Judges of the Family Division between 1970 and 1976 almost as often as I appeared before High Court Judges in the Queen’s Bench Division: they included Mr Justice Tasker Watkins VC and also Dame Elizabeth Lane and Dame Rose Heilbron, the first two women to be appointed to the High Court Bench.

All this experience was very helpful in my early days as a High Court Judge of the Queen’s Bench Division in the late 1980s, when I would often volunteer to help with the Family Judge’s list if there was no civil or criminal work to try on circuit.  This came to an end with the implementation of the Children Act 1989 for which special judicial training was prescribed, and I suppose it would be unimaginable today when everything has become so specialised.  I am sure that increasing specialism has driven up the cost.

One final memory. In the days before word-processors, I wrote out every single divorce petition in full (along with any summons and supporting affidavit(s) that were needed) by hand.   They were then typed, and later re-typed in the solicitor’s office.  In cases of emergency – for instance if a client needed an urgent injunction – I would send out the drafts in manuscript.  In one case of its type, I had turned the papers around within 24 hours, but I was told the following Monday that at the weekend my client had been killed by her violent husband, the very outcome she was seeking the court’s protection to avoid.

I will be posting separately my address to a Special Public Bills Committee of the House of Lords in early 1995 when I was chairman of the Law Commission.  We were presenting a Bill to complete the process of simplifying the respective jurisdictions of the High Court, the county court and the magistrates’ court in family law matters.  Here, too, my long practical experience of family law cases stood me in good stead, although Brenda Hale had been the Law Commissioner with primary responsibility for that project and was to be the main Law Commission witness in the committee’s detailed examination of the Bill.   In the event, a very hostile one-day hurricane from the Daily Mail blew that Bill off course at the end of that parliamentary session, but it was placed safely on the statute book, virtually unaltered, 12 months later.

[1] Perhaps all commissions of inquiry should contain at least one person who earns his or her living as a writer.

[2] See Bendall v McWhirter [1952] QB 466. Although this was a minority judgment, the existence of the equity was increasingly adopted by the courts in the next 13 years.

[3] In National Provincial Bank v Ainsworth [1965] AC 1175.

[4] [1971] 1 WLR 1022.

[5] See, for instance, Michael Freeman in Lord Denning, the Judge and the Law (ed Jowell & McAuslan,1984) at p 141.

[6] In Cowcher v Cowcher [1972] 1 WLR 425.

One thought on “Law and practice in the 1960s: (3) Family Law (1964-1977)

  1. Pingback: Lord Denning and I (2): 1962-1972 – Henry Brooke

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