At the end of chapter 8 of In Chancery by John Galsworthy, young Jolyon Forsyte, a thoughtful, discerning and largely caring chap in his early 50s, has just had his first meeting in 20 years with his cousin Soames Forsyte. Soames had sought Jolyon’s advice on how he (Soames) can set about getting a divorce from the woman who left him some 12 years earlier. Jolyon doesn’t much care for his cousin and though he has only met Irene infrequently and has never got to know her, he is the trustee of a life interest of £10,000 in her favour as left by his father, Old Jolyon. He thinks of the problems facing them both in late Victorian England. Soames wishes the divorce so he can remarry and produce an heir to give purpose to the great wealth he has amassed. Irene would also like to be free of her husband but is loath to grant anything to a man who has caused her great unhappiness. Of which more to follow. Divorce wasn’t easy a hundred years ago and being trapped in the wrong marriage is a recurring theme of late-nineteenth-century literature. To obtain a legal separation guilt has to be proven. Even today there can be problems obtaining a divorce if the other party opposes it. Owens v Owens  UKSC 41 shows a modern world couple who, the court agree, are in a marriage that has broken down irreparably but cannot obtain a divorce because the behaviour of the husband is not unreasonable enough for the court. The husband said it was not unreasonable enough and weighing the evidence against precedent, first the Family Division of the High Court and then successively the Court of Appeal and the Supreme Court agreed with him. Such cases give support to the much-quoted line from Mr Bumble in Oliver Twist that “the law is a ass – a idiot.”
Not so, but the law has its hands tied by history and precedent. Judges, at least in the Supreme Court, can overturn previous judgements. They can, in effect, create new law. It may not always be matters of constitutional significance like finding the prime minister acted unlawfully in proroguing Parliament in October 2019 but it was never likely that they were going to set new grounds for a no-fault divorce. They would consider this, perhaps rightly, to be a task for legislators.
Marriage makes things legal. Many couples don’t realise what a big difference it makes to have your names bound together in a ceremony. Legally it can make the world of difference. Fall out with a long-term partner and there may be some arguing over whose copy of Catcher in the Rye is whose, and some legal matters over land but basically, they are free to go their separate ways and either could marry someone else the following day. Not so for Mr and Mrs Owens. And certainly not Soames and Irene.
Evelyn Waugh visited the same dilemma in A Handful of Dust 20 years after Galsworthy. Tony and Brenda Last are unhappily married but only Brenda realises how unhappy. She has an affair with a man she doesn’t particularly like and demands a divorce. Tony agrees that he will “do the honourable thing” and become the guilty party to save his wife’s reputation. The customary means of doing this was to be publicly seen to book into a hotel, preferably in a place with a seedy reputation; say Brighton of Scarborough with a member of the opposite sex. Tony books into a Brighton hotel with a prostitute (who has a child with her) and they spend the weekend passing the time honourably and certainly not engaging in matters of a conjugal nature, socks off in the bridal suite. A photographer is there by arrangement and so adultery is proved and the Lasts get their divorce.
Neither Soames nor Irene is prepared to play out this charade. Soames has played the “You are still my wife” card which in his mind means I can do with you pretty much as I please. He certainly at this stage of the series of novels has a high degree of misogyny from social attitudes and from his upbringing. In short, he rather regards Irene as his personal property. He had wanted a divorce but after noticing that, even after a dozen years of separation, she is still dazzlingly beautiful, he begins to consider that, even though he has carefully selected, and begun his overtures towards, her successor in the personal property/broodmare stakes, it might save a lot of bother simply to persuade his old wife to return to him. He is a property and contract lawyer. A contract, once agreed is to be abided by. Marriage is, in his mind just such a contract.
As all who are familiar with The Forsyte Saga know, the marriage broke up in the first place because Soames, in the grip of a desire to possess his wife in almost every meaning of the word, had effectively raped her. I say “effectively’ as he had actually raped her in every sense bar the legal one. The law had held for centuries that marriage legalises the conjugal act and that not only is rape within marriage not possible but is a contradiction in terms. Incredibly it took the English courts until 1991!!! (R v R  3 WLR 767)to declare this former belief to be abhorrent and anachronistic. In fact (and you’ll be hearing more of these in the coming weeks) a “legal fiction”. Yes, it took the British justice system until the closing years of the millennium to recognise rape within marriage.
If Mrs Owens were in Irene’s position then she would have no difficulty in obtaining a divorce but as it was the mid-1880s her rapist husband was guilty of no crime. They are both ensnared by social and legal conventions. During the three years of marriage, Irene had had an adulterous affair which she is in no hurry to have widely talked about. She hasn’t had a romantic relationship since the separation. You can argue guilt on both sides and it depends on the above mixture of conventions as to whether you would consider one more guilty than the other. This is a novel that was, I believe, written in part to add pressure on legislators to change the law on divorce and to question the nature of rights conferred within the marriage settlement. From a legal perspective, we must judge it from its own times. By all means enjoy it as an historical read but judge the legality by contemporary standards.
It is at this point that Jolyon reflects on Irene in her ‘lonely flat” and Soames in his “lonely office, and of the strange paralysis of life that lay on them both. ‘In chancery!’ he thought. ‘Both their necks in chancery – and hers so pretty.'” (page 74)
No novelist can use the words In Chancery without evoking the opening chapter of Bleak House. Yes, the one with all the fog and the megalosaurus waddling up Holborn Hill. The great Chancery novel with the never-ending case of Jarndyce and Jarndyce arguing over various badly drafted wills and ensnaring half the population of London in its tentacles with tragic outcomes. As many bodies in this one as in Hamlet. All linked to the great court of Equity. In the Dickens novel, the legal side is never much gone into but the effects are demonstrated with genius over 900 pages. The links to the equitable court are clear. If you have a claim in the suit then you are drawn in. You are “In Chancery”. The link between Soames and Irene and Chancery is not so clear and needs teasing out slowly.
That will be the subject matter of the next post.