Keele University - School of Law - SJHR - International Women’s Day - Guest Speaker - 12 March 2021
Original video: https://youtu.be/KGhVdfL4rAs
Feminist Legal History and the Case of Divorce Dr Sharon Thompson Reader in the School of Law and Politics at Cardiff University Recorded: 12 March 2021
Abstract
This talk explores how feminist legal history can be employed to reassess feminist challenges to divorce reform. I will focus in particular on Edith Summerskill MP’s notorious charge that divorce without consent, introduced by the Divorce Reform Act 1969, represented a ‘Casanova’s charter’. Based on a study of previously unexplored archival documents, interview data and letters Summerskill received from deserted wives, this approach helps reveal new accounts of backroom deals and underlying tensions behind the passage of the Divorce Reform Act 1969. Looking to these alternative sources shows Summerskill did not simply oppose divorce, but instead focused on giving voice to a demographic that was virtually invisible in Parliament at that time – deserted wives. And so, through this closer inspection of an individual’s role within a much larger network of reformers, we can find different historical understandings of law reform when we adopt a feminist point of view. As this case study of divorce reform illustrates, a feminist approach to legal history is important because it not only adds a different perspective, but also helps uncover previously unknown stories to make our understanding of the past more complete.
Bio
Dr Sharon Thompson is a Reader in the School of Law and Politics at Cardiff University, with interests in family law and mid-twentieth century feminist legal history. She is currently writing a book on the history of the Married Women’s Association. Her first monograph Prenuptial Agreements and the Presumption of Free Choice (Hart 2015) was shortlisted for the 2017 Birks Prize and the 2016 SLSA Socio-Legal Prize.
Hello and welcome, everyone. It's my pleasure to welcome Dr. Sharon Thompson as our guest lecturer for International Women's Day. Sharon's paper is on feminist legal theory and the case of divorce. Sharon is a reader in the School of Law at Cardiff, but she has a very special place in our hearts at KU because her journey started with our lectureship here with us. Sharon is an internationally recognized expert in family law and feminist legal history. Her monograph on prenuptial agreements was shortlisted for numerous book prizes and has also been cited with approval by the High Court of Australia. Sharon is the holder of an Outstanding Contribution Award for research and has been interviewed on various platforms, including the BBC. She has also been invited as an expert on the BBC Radio 4 program "The Battles That Won Our Freedom." So, Sharon, thank you so much for being our guest lecturer.
Thank you so much, Eliza. What a lovely introduction. I do wish it were in person. I have such great memories of my time at KU. Thank you so much for giving me the chance to speak a little bit about feminist legal history as it relates to my current research. I'm currently on study leave, writing a book on the Married Women's Association and its efforts to reform different aspects of family law. The Married Women's Association is a group I stumbled across when trying to find out more about a fairly archaic statute called the Married Women's Property Act 1964, which they turned out to be involved with. As a family lawyer, I simply had no idea about what this group had done for family law in the mid-20th century, and I think a few other family lawyers probably felt the same way. So, I became interested in finding out more as to why this might be the case.
Feminist legal history, I would suggest, is a tool that can definitely help with this because this approach shifts the focus away from dominant narratives about the laws that passed and those who were successful in achieving reform. Instead, it looks to those who have influenced change, sometimes in unforeseen ways, perhaps behind the scenes. Of course, change can be influenced by the bills that were not passed, the people who were not successful in achieving their aims. I definitely recommend Erica Rockley and Ruth McMurray's latest article on feminist legal history, almost as a guidebook on how to use this approach. It just came out recently in the Oxford Journal of Legal Studies. Feminist legal history, for me, has helped frame my own research questions, looking at women's relationships with law and law reform and seeking out accounts that look at the roles and experiences of women in feminist work. This makes accounts of law reform arguably much messier than they might first appear, because of the broader feminist context of the campaigns, the setbacks, and when there is success, the backlash. It also requires looking to non-legal sources to learn more about the previously ignored legal actors. So, I am adopting this approach today, and I am going to focus not on the Married Women's Association but on their first president, Dr. Edith Summerskill, and what her role was in divorce reform in the 1960s.
Dr. Edith Summerskill was a doctor, a politician, and a feminist activist at a time when women were only just allowed to participate in public life. She was a Labour MP from 1938 until she became a life peer in 1961, and by this time, there had only been three other female ministers of state. Summerskill had a track record of fighting for women's rights because she masterminded the Married Women's Property Act 1964, which gave wives a one-half share of housekeeping savings and also the Matrimonial Homes Act 1967, which gave deserted wives the right to occupy the matrimonial home. Her grandson, Ben Summerskill, when I interviewed him for my book, told me that, as far as he is aware, she was the first woman politician who happily called herself a feminist. So, Dr. Edith, as she was known to her constituents, is often described as formidable and redoubtable. She battled priests on the election trail in the 1930s when she refused to tone down her birth control stance. She tried to ban boxing, and she spent her entire professional life devoted to the work of the Married Women's Association to try and establish an equal legal and financial partnership within marriage.
But to try and give you a sense of what she was like, I want to share an anecdote taken from Patricia Hollis's 1997 biography of Jennie Lee. In it, she writes about journalist Melanie Phillips, who went to Edith Summerskill's house to try to interview her for a book. She was invited in by Summerskill mistakenly because she thought she was someone else. Upon discovering this, she inquired what I had done for the feminist movement. I replied, "I had done nothing of any significance." She seemed much taken aback by this information. "Well, what movements did I belong to, then?" "None at all," I replied. "Not at all." "How old was I, and was I educated?" Upon learning that I was 27 and had been educated at Oxford, she drew herself up in her chair as if I had delivered some savage insults. "Did I not know who she was? Did I not know that she had spent years of her life working so that girls like me could go to Oxford? And what was I writing this book for, anyway?" "Just out of interest," I replied, feebly. "Interest?" She exclaimed. "I was obviously writing it for the money." She had nothing in common with me. She would tell me nothing and thought I had better leave. Within ten minutes of meeting Lady Summerskill, I found myself on the other side of her front door.
So now we know Dr. Edith a little better. I want to talk today about her role in the reform of divorce and its financial consequences in the 1960s. As you can see on this slide, the most recent reform of divorce was last year, and this will come into effect later this year. It removes fault from the divorce process, entirely an important and radical development in family law since the concept of the matrimonial offense has overshadowed secular divorce law ever since it was first introduced in 1857. Now, the last time divorce reform was, and she just was, 50 years ago in 1971 when the Divorce Reform Act 1969 came into force, alongside significant reform of the financial consequences of divorce too. It is this landmark reform that I want to focus on in this talk.
I want to note two things in particular on this slide. First is the fact that the implementation of the Divorce Reform Act was delayed until 1971 so the Law Commission could properly investigate the financial impact this would have and propose reform accordingly. Second is the quotation at the top of the slide here that in 1982, feminist historian Dorothy Stetson said that originally the Law Commission did not plan to recommend reform of the financial consequences of divorce until later down the line. So, if you're like me, this would be immediately ringing alarm bells. Do we know the whole story of why the 1969 Act was delayed for two years at the 11th hour? And if Dorothy Stetson is correct, what changed the Law Commission's mind?
The standard account is that the introduction of no-fault divorce and the overhaul of financial provision were two discrete legislative proposals and that the Law Commission had every intention of reforming the financial consequences of divorce but not yet. To do this, they had to keep the bills separate. First came the Family Law Bill that introduced no-fault divorce, and then they could draft another bill focused solely on the financial consequences of divorce. That was the plan. However, what I want to suggest to you today is that perhaps this isn't the whole story. Perhaps this narrative is only possible by treating feminist history as marginal when the opposite may be true. And I want to show how Dr. Edith was in the centre of divorce reform.
I now want to shift gears a little and ask you to imagine you're listening to this lecture in the 1960s. There are a few things to keep in mind. The first is that I want you to try and imagine what it would be like to be a woman in the 1960s. This was a time when there was no legal aid for divorce. It was a time when divorce was only possible through a lengthy legal process, and it required establishing fault, typically adultery. The parties also had to live separately for a set period before they could even file for divorce. The husband was still the legal head of the household, and wives often had little financial independence. And if that isn't bad enough, divorcing women were typically worse off financially post-divorce. The law just didn't protect them in the way it should.
Second, I want you to keep in mind the fact that these barriers to divorce disproportionately affected women. Divorce often meant poverty for women, and for many, staying in an unhappy marriage was the only option. In short, the divorce laws were in desperate need of reform, and this is where Dr. Edith Summerskill enters the story.
As mentioned, the standard account of divorce reform is that it started with the Family Law Bill, which introduced no-fault divorce. This bill was drafted by the Law Commission and was based on a report called "The Field of Choice" that was published in 1966. The Family Law Bill was introduced into the House of Commons in March 1969. However, this is not the full picture.
I want to suggest to you today that the Family Law Bill was not the first bill to be drafted, and it wasn't the first bill to be introduced into Parliament. It was the Divorce Law Reform Bill that was first drafted, and this bill was also the one that was initially supposed to be implemented first. This was the bill that aimed to reform the financial consequences of divorce. So, why did this bill come first, and why did it then get pushed to the side?
Let's go back to the beginning. In 1967, the Law Commission published a consultation paper on divorce reform. This paper outlined two possible bills: one for no-fault divorce and one for reform of financial consequences. The Law Commission was in favour of introducing no-fault divorce, but they were hesitant to tackle financial provision at the same time. Why? Well, they were concerned that if they tried to do both at once, it would be too ambitious and that both bills might fail as a result. The Law Commission was worried that if they tried to do too much, it could lead to the failure of both bills, and they really wanted no-fault divorce to pass. They thought it was more achievable on its own.
So, here's where Dr. Edith Summerskill comes in. She was the chair of the Married Women's Association at this time, and she was determined to see both aspects of divorce reform tackled together. She was not willing to settle for just no-fault divorce. She believed that reforming the financial consequences of divorce was just as important, if not more so, for women. So, she and the Married Women's Association began campaigning for both aspects of divorce reform to be addressed simultaneously.
They lobbied members of Parliament, they wrote letters, they organized events, and they made it clear that they wanted both bills to be introduced together. Their efforts were successful, and the Law Commission eventually agreed to draft the Divorce Law Reform Bill alongside the Family Law Bill. It's worth noting that the Divorce Law Reform Bill was actually drafted before the Family Law Bill, and it was supposed to be introduced into Parliament first. However, at the last minute, the decision was made to reverse the order and introduce the Family Law Bill first.
So, why did this reversal happen? The official explanation is that the Law Commission decided to introduce the Family Law Bill first because it was seen as less controversial and more likely to pass. However, there may have been other factors at play. Some have suggested that political considerations and the desire to avoid a backlash from conservative elements in society may have influenced the decision. Regardless of the reasons, the important point is that Dr. Edith Summerskill and the Married Women's Association played a crucial role in ensuring that both aspects of divorce reform were on the agenda.
Now, let's fast forward to 1971 when the Divorce Reform Act finally came into force. This landmark legislation introduced no-fault divorce and significantly reformed the financial consequences of divorce. It represented a major step forward for women's rights and marked the culmination of years of advocacy and activism by Dr. Edith Summerskill and others.
In conclusion, Dr. Edith Summerskill's role in divorce reform in the 1960s is a testament to the power of feminist activism and the importance of challenging the status quo. She and the Married Women's Association were instrumental in ensuring that both aspects of divorce reform were addressed, despite initial resistance from the Law Commission. Their efforts paved the way for significant changes in family law that benefited countless women.
So, when we look back at the history of divorce reform in the UK, let's not forget the key role played by Dr. Edith Summerskill and the feminist activists who fought for a fairer and more equitable system. Thank you.