Matrimonial Causes Act 1857
Encyclopedia
The Matrimonial Causes Act 1857 (20 & 21 Vict., c. 85) was an Act of Parliament
Act of Parliament
An Act of Parliament is a statute enacted as primary legislation by a national or sub-national parliament. In the Republic of Ireland the term Act of the Oireachtas is used, and in the United States the term Act of Congress is used.In Commonwealth countries, the term is used both in a narrow...

 passed by the Parliament of the United Kingdom
Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...

. The Act reformed the law on divorce
Divorce
Divorce is the final termination of a marital union, canceling the legal duties and responsibilities of marriage and dissolving the bonds of matrimony between the parties...

, moving litigation from the jurisdiction of the ecclesiastical court
Ecclesiastical court
An ecclesiastical court is any of certain courts having jurisdiction mainly in spiritual or religious matters. In the Middle Ages in many areas of Europe these courts had much wider powers than before the development of nation states...

s to the civil courts, establishing a model of marriage based on contract
Contract
A contract is an agreement entered into by two parties or more with the intention of creating a legal obligation, which may have elements in writing. Contracts can be made orally. The remedy for breach of contract can be "damages" or compensation of money. In equity, the remedy can be specific...

 rather than sacrament
Sacrament
A sacrament is a sacred rite recognized as of particular importance and significance. There are various views on the existence and meaning of such rites.-General definitions and terms:...

 and widening the availability of divorce beyond the privileged few.

Background

Before the Act, divorce was governed by the ecclesiastical Court of Arches and the canon law
Canon law
Canon law is the body of laws & regulations made or adopted by ecclesiastical authority, for the government of the Christian organization and its members. It is the internal ecclesiastical law governing the Catholic Church , the Eastern and Oriental Orthodox churches, and the Anglican Communion of...

 of the Church of England
Church of England
The Church of England is the officially established Christian church in England and the Mother Church of the worldwide Anglican Communion. The church considers itself within the tradition of Western Christianity and dates its formal establishment principally to the mission to England by St...

. As such, it was not administered by the barrister
Barrister
A barrister is a member of one of the two classes of lawyer found in many common law jurisdictions with split legal professions. Barristers specialise in courtroom advocacy, drafting legal pleadings and giving expert legal opinions...

s who practised in the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

 courts but by the "advocates" and "proctors" who practised civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...

 from Doctors' Commons
Doctors' Commons
Doctors' Commons, also called the College of Civilians, was a society of lawyers practising civil law in London. Like the Inns of Court of the common lawyers, the society had buildings with rooms where its members lived and worked, and a large library...

, adding to the obscurity of the proceedings. Divorce was de facto
De facto
De facto is a Latin expression that means "concerning fact." In law, it often means "in practice but not necessarily ordained by law" or "in practice or actuality, but not officially established." It is commonly used in contrast to de jure when referring to matters of law, governance, or...

restricted to the very wealthy as it demanded either a complex annulment
Annulment
Annulment is a legal procedure for declaring a marriage null and void. Unlike divorce, it is usually retroactive, meaning that an annulled marriage is considered to be invalid from the beginning almost as if it had never taken place...

 process or a private bill
Private bill
A private bill is a proposal for a law that would apply to a particular individual or group of individuals, or corporate entity. If enacted, it becomes a private Act . This is unlike public bills which apply to everyone within their jurisdiction...

, either at great cost. The latter entailed sometimes lengthy debates about a couple's intimate marital relationship in public in the House of Commons
British House of Commons
The House of Commons is the lower house of the Parliament of the United Kingdom, which also comprises the Sovereign and the House of Lords . Both Commons and Lords meet in the Palace of Westminster. The Commons is a democratically elected body, consisting of 650 members , who are known as Members...

.

A bill
Bill (proposed law)
A bill is a proposed law under consideration by a legislature. A bill does not become law until it is passed by the legislature and, in most cases, approved by the executive. Once a bill has been enacted into law, it is called an act or a statute....

 to create a civil court to regulate divorce and to allow it to proceed by ordinary civil litigation had been proposed by Lord Aberdeen
George Hamilton-Gordon, 4th Earl of Aberdeen
George Hamilton-Gordon, 4th Earl of Aberdeen KG, KT, FRS, PC , styled Lord Haddo from 1791 to 1801, was a Scottish politician, successively a Tory, Conservative and Peelite, who served as Prime Minister of the United Kingdom from 1852 until 1855.-Early life:Born in Edinburgh on 28 January 1784, he...

's coalition
Coalition Government 1852-1855
After the collapse of Lord Derby's minority government, the Whigs and Peelites formed a coalition under the Peelite leader Lord Aberdeen. The government resigned in early 1855 after a large parliamentary majority voted for a select committee to enquire into the incompetent management of the Crimean...

 but had made no progress. The procedure had largely been designed by Lord Chief Justice Lord Campbell
John Campbell, 1st Baron Campbell
John Campbell, 1st Baron Campbell PC, KC was a British Liberal politician, lawyer, and man of letters.-Background and education:...

. When Lord Palmerston
Henry Temple, 3rd Viscount Palmerston
Henry John Temple, 3rd Viscount Palmerston, KG, GCB, PC , known popularly as Lord Palmerston, was a British statesman who served twice as Prime Minister in the mid-19th century...

 came to power in 1855, the bill was relaunched. The bill was introduced in the House of Lords
House of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....

 and supported by Archbishop of Canterbury
Archbishop of Canterbury
The Archbishop of Canterbury is the senior bishop and principal leader of the Church of England, the symbolic head of the worldwide Anglican Communion, and the diocesan bishop of the Diocese of Canterbury. In his role as head of the Anglican Communion, the archbishop leads the third largest group...

 John Bird Sumner
John Bird Sumner
John Bird Sumner was a bishop in the Church of England and Archbishop of Canterbury.-Life:Sumner was the elder brother of Bishop Charles Richard Sumner. He was born at Kenilworth, Warwickshire and educated at Eton College and Cambridge University. In 1802 he became a master at Eton and was...

 and the usually conservative Henry Phillpotts
Henry Phillpotts
Henry Phillpotts , often called "Henry of Exeter", was the Anglican Bishop of Exeter from 1830 to 1869. He was England's longest serving bishop since the 14th century and a striking figure of the 19th century Church.- Early life :...

, Bishop of Exeter
Bishop of Exeter
The Bishop of Exeter is the Ordinary of the Church of England Diocese of Exeter in the Province of Canterbury. The incumbent usually signs his name as Exon or incorporates this in his signature....

.

The bill proved controversial, raising particular opposition from future Liberal Party
Liberal Party (UK)
The Liberal Party was one of the two major political parties of the United Kingdom during the 19th and early 20th centuries. It was a third party of negligible importance throughout the latter half of the 20th Century, before merging with the Social Democratic Party in 1988 to form the present day...

 leader William Ewart Gladstone
William Ewart Gladstone
William Ewart Gladstone FRS FSS was a British Liberal statesman. In a career lasting over sixty years, he served as Prime Minister four separate times , more than any other person. Gladstone was also Britain's oldest Prime Minister, 84 years old when he resigned for the last time...

, who saw it as an usurpation of the authority of the Church, and from Bishop of Oxford
Bishop of Oxford
The Bishop of Oxford is the diocesan bishop of the Church of England Diocese of Oxford in the Province of Canterbury; his seat is at Christ Church Cathedral, Oxford...

 Samuel Wilberforce
Samuel Wilberforce
Samuel Wilberforce was an English bishop in the Church of England, third son of William Wilberforce. Known as "Soapy Sam", Wilberforce was one of the greatest public speakers of his time and place...

. Palmerston eventually steered the bill through Parliament, despite Gladstone's attempted filibuster
Filibuster
A filibuster is a type of parliamentary procedure. Specifically, it is the right of an individual to extend debate, allowing a lone member to delay or entirely prevent a vote on a given proposal...

.

The Act

The Act created a new Court of Divorce and Matrimonial Causes and gave it jurisdiction to hear and decide civil actions for divorce. Further, it gave rights of audience
Rights of audience
In common law, a right of audience is generally a right of a lawyer to appear and conduct proceedings in court on behalf of their client. In English law, there is a fundamental distinction between barristers, who have a right of audience, and solicitors, who traditionally do not ; there is no such...

 both to common law barristers and civil law advocates, removing the advocates' previous monopoly in divorce proceedings.

It came into force on 1 January 1858.

Implementation and impact

Such a court would require sensitive but firm supervision and Palmerston appointed Sir Cresswell Cresswell as its first judge-in-ordinary with bipartisan support. Cresswell was not an obvious appointment. A mercantile lawyer who had been somewhat diffident as a junior judge in the Court of Common Pleas
Court of Common Pleas (England)
The Court of Common Pleas, or Common Bench, was a common law court in the English legal system that covered "common pleas"; actions between subject and subject, which did not concern the king. Created in the late 12th to early 13th century after splitting from the Exchequer of Pleas, the Common...

, Cresswell was a bachelor with a reputation for impatience and a short temper. However, he succeeded superbly in establishing the authority, dignity and efficiency of the new regime.

In the first year of operation of the Act, there were three hundred divorce petitions, as against three in the previous year and there were fears of chaos. Campbell sat in some of the earliest hearings but was afraid that he had created a "Frankenstein
Frankenstein
Frankenstein; or, The Modern Prometheus is a novel about a failed experiment that produced a monster, written by Mary Shelley, with inserts of poems by Percy Bysshe Shelley. Shelley started writing the story when she was eighteen, and the novel was published when she was twenty-one. The first...

". However, Cresswell took a managerial role in regulating the new flood of litigation. He showed great sensitivity in dealing with genuine grievances but upheld the sanctity of marriage and was capable of being severe when necessary. However, he was also instrumental in moving the legal view of divorce from that based on a sacrament to that based on contract. He worked with colossal speed and energy, deciding over one thousand cases in six years, only one of which was reversed on appeal. He achieved some public fame and huge respect, popularly being held as representing the five million married women of Britain.

The Act was also an important enabling step in unifying and rationalising the legal system of England and Wales
England and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...

, a process that was largely effected by the Judicature Acts
Judicature Acts
The Judicature Acts are a series of Acts of Parliament, beginning in the 1870s, which aimed to fuse the hitherto split system of courts in England and Wales. The first two Acts were the Supreme Court of Judicature Act 1873 and the Supreme Court of Judicature Act 1875 The Judicature Acts are a...

 (1873–1875). It also catalysed the unification of the legal profession. By the abolition of any remaining important role for canon lawyers, it ultimately led to the demise of the Doctors' Commons
Doctors' Commons
Doctors' Commons, also called the College of Civilians, was a society of lawyers practising civil law in London. Like the Inns of Court of the common lawyers, the society had buildings with rooms where its members lived and worked, and a large library...

.
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