Alfred Hitchcock's silent film Easy Virtue opens with a divorce trial, interspersed with flashbacks. The film is set in the 1920s, and the trial is in England. It seems to show a jury meeting and considering the verdict. Is that an accurate depiction of how such a divorce proceeding would have been conducted in that time and place?

More generally, are there any common-law countries where a jury is likely to be used in a divorce proceeding? Or any where a jury would have been used in the past?

(Or would the particular facts of the story in the movie, such as that her alleged lover left her money in his will, or that he died in a confrontation with her husband, have been a basis to convene a jury, even though a typical divorce in those days wouldn't have used one?)

1 Answer 1


Short Answer

In the 1920s, there was not a right to a trial by jury in a divorce case in England and Wales, but a judge had the authority to order a jury trial in a divorce case, and while this was rare and disfavored, if the judge did so, the jury would have both me and women on it at that time.

Or would the particular facts of the story in the movie, such as that her alleged lover left her money in his will, or that he died in a confrontation with her husband, have been a basis to convene a jury, even though a typical divorce in those days wouldn't have used one?

This is possible but not decisive. Historically there was a right pre-1883 to have the validity of a Will handled in a trial by jury, but that would not have existed post-1883, and it would be highly unusual to merge a probate case and a divorce case, or a wrongful death case and a divorce case.

The most likely time for there to be a jury trial of a divorce in England would be from 1857 to 1883, but the historical evidence isn't decisive from what I have at my disposal in that time period. It could be that the Hitchcock account was based upon accounts of jury trials in divorces from that time period.

A more likely scenario is that Hitchcock's script was originally based upon an American jury trial in a divorce, which would have existed in the 1928 when the film was made and in 1925 in New York State where the original stage play debuted, or in the alternative, upon a non-divorce court proceeding in the stage play that it was based upon, related to suicide. This was probably then transplanted to England without legal fact checking (and with a jury) for dramatic effect.

Notably, the original stage play which debuted in 1925 in New York City upon which the film was based was only very loosely used as inspiration for the film. The stage play was ambiguous about where the events took place and where the divorce took place. In the original New York City stage production, a New York setting was implied but not stated. In the London stage production that followed not long after the New York City debut, a London setting was probably implied. Neither stage production showed a jury proceeding in the divorce on stage.

Long Answer

Historically, some common law countries had jury trials on at least whether the marriage could be terminated. According to 56 A.L.R.4th 955 those states included Colorado, Georgia, Illinois, Louisiana, Maine, Nevada, New York, North Carolina, Tennessee, Texas and Wisconsin. Most of these limit the right to a jury to try issues regarding grounds or entitlement for divorce only. Pennsylvania appears to be such a state. 23 Pennsylvania Statutes § 3322.

Colorado appears to have terminated the right to a jury trial when it adopted no fault divorce. Colorado's Dissolution of Marriage Act provides that "All issues raised by these proceedings shall be resolved by the court sitting without a jury." Section 14-10-107(6), Colorado Revised Statutes. Recent case law is in agreement: "All issues raised or presented in a dissolution proceeding are to be resolved by the court in equity sitting without a jury." In re Marriage of Lewis, 66 P.3d 204, 205 (Colo. App. 2003).

Georgia, at least, until recently, had quite broad divorce jury trials. Moxley v. Moxley, 2006 Ga. LEXIS 987 (November 28, 2006).

Texas has provided jury trial rights most broadly, including even the right to a jury trial on questions regarding child custody. (For citations, see the annotation on the subject at).

The reason for the split of authority is that at common law and historically at equity, divorce itself was not available except by legislative special bills particular to a given couple. Most domestic and family property matters were in equity, in which jury trials were not available, but the right to a judicial divorce was a 19th century statutory innovation whose procedure in terms of law or equity had to be determined as a matter of first impression in states where the statute itself did not resolve the question. Divorce as a legal cause of action post-dates the law and equity division that governed the right to a jury trial in other matters in common law countries.

Where no fault divorce is the exclusive grounds for divorce and fault was no longer a consideration in resolving substantive matters within a divorce case, jury trials were almost always dispensed with. But, it lingered on in fault based divorce systems, in some cases, even if fault based divorces grew rare.

Getting to the point, England adopted fault based judicial divorce by statute in 1857. Prior to that there were 324 divorces authorized by parliament in English history (from King Henry in 1552, to the second divorce in 1670, to the enactment of the law), only four of which were initiated by women.

According to Wikipedia, the highlights of British divorce legislation were as follows:

Historically, divorce was not administered as such by the barristers who practised in the common law courts but by the "advocates" and "proctors" who practised civil law from Doctors' Commons, adding to the obscurity of the proceedings. Divorce was de facto restricted to the very wealthy as it demanded either a complex annulment process or a private bill leading to an Act of Parliament, with great costs for either. The latter entailed sometimes lengthy debates about a couple's intimate marital relationship in public in the House of Commons.

The Matrimonial Causes Act 1857 moved litigation from the jurisdiction of the ecclesiastical courts to the civil courts, establishing a model of marriage based on contract rather than sacrament and widening the availability of divorce beyond those who could afford to bring proceedings for annulment or to promote a private Bill. The Matrimonial Causes Act 1923 provided for adultery as sole ground for either husband and wife, not just the husband. Prior to this women had to prove additional fault.

The Matrimonial Causes Act 1937 made divorce easier to access, particularly for women, who until then could not get a divorce merely on grounds of adultery, as men could: women needed to show more causes than adultery, such as incest, sodomy, or cruelty. The need for the reforms was illustrated in the best-selling satirical novel Holy Deadlock (1934).

The Divorce Reform Act 1969 marked a significant change in that people could end marriages that had "irretrievably broken down" without having to prove fault. They could end marriages after separation of two years, if both parties desired divorce, or five years if only one party desired divorce.

The Matrimonial Causes Act 1973 provided that a marriage had to have lasted for three years before a divorce could be applied for; the Matrimonial and Family Proceedings Act 1984 reduced this period to one year.

Either the 1857 Act or the 1923 Act could have been in force in a 1920s setting.

Procedurally, the 1857 Act "abolished Ecclesiastical jurisdiction regarding matrimonial matters, and for the first time secular divorces possible (by court order). 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 both to common law barristers and civil law advocates, removing the advocates' previous monopoly in divorce proceedings."

The Court for Divorce and Matrimonial Causes was created by the Matrimonial Causes Act 1857, which transferred the jurisdiction of the ecclesiastical courts in matters matrimonial to the new court so created.

The Judge Ordinary of the Court for Divorce and Matrimonial Causes also presided over the Court of Probate, but the two Courts remained separate entities.

On 1 November 1875, under the Supreme Court of Judicature Act 1873 and the Supreme Court of Judicature Act 1875, the Judge Ordinary of the Court for Divorce and Matrimonial Causes was transferred, as its President, to the Probate, Divorce and Admiralty Division of the High Court of Justice.

The High Court of Justice's jurisdiction over divorce cases has continued thorough the present, with the High Court of Justice now having a Queen's Bench Division, a Chancery Court Division and a Family Court Division. The 1875 Act that created the High Court effectively merged law and equity into a single bureaucratic institution in English law.

The High Court of Justice was established in 1875 by the Supreme Court of Judicature Act 1873. The Act merged eight existing English courts—the Court of Chancery, the Court of Queen's Bench, the Court of Common Pleas, the Court of Exchequer, the High Court of Admiralty, the Court of Probate, the Court for Divorce and Matrimonial Causes, and the London Court of Bankruptcy—into a new Supreme Court of Judicature (now known as the Senior Courts of England and Wales). The new Supreme Court was divided into the Court of Appeal, which exercised appellate jurisdiction, and the High Court, which exercised original jurisdiction.

Originally, the High Court consisted of five divisions—the King’s Bench, Common Pleas, Exchequer, Chancery, and Probate, Divorce and Admiralty divisions. In 1880, the Common Pleas and Exchequer divisions were abolished, leaving three divisions. The Probate, Divorce and Admiralty Division was renamed to the Family Division by the Administration of Justice Act 1970, and its jurisdiction reorganised accordingly.

In the 1920s divorces would have been heard in the Probate, Divorce and Admiralty division of the High Court, with the King's Bench and Chancery divisions co-existing with it, and the Family division not yet in existence. The Kings/Queen's Bench division handled cases arising in "law" rather than "equity". The Chancery division was a court of equity in which jury trials were not used.

The primary innovation with regard to jury trials in the High Court came in 1883:

Another change was made by the rules of 1883, which was regarded by some common law lawyers as revolutionary. Formerly every issue of fact in a common law action, including the amount of damage, had to be decided by the verdict of a jury. "The effect of the rules of 1883," said Lord Lindley, who was a member of the rule committee, "was to make trial without a jury the normal mode of trial, except where trial with a jury is ordered under rules 6 or 7a, or may be had without an order under rule 2".7 The effect of the rules may be thus summarised:

In the Chancery division no trial by jury unless ordered by the judge.

Generally the judge could order trial without a jury of any cause or issue, which before the Judicature Act might have been so tried without consent of parties, or which involves prolonged investigation of documents or accounts, or scientific or local investigation.

Either party had a right to a jury in actions of slander, libel, false imprisonment, malicious prosecution, seduction or breach of promise of marriage, upon notice without order;

or in any other action, by order.

Subject as above, actions were to be tried without a jury unless the judge, of his own motion, otherwise orders.

As emphasized above, as of 1883, there was a right to a trial by jury in "heart balm actions" but not for a divorce itself, in which case a trial by jury was in the discretion of the court and was disfavored. A seduction action is one brought by a woman induced to have sex before marriage based upon a misrepresentation and would be brought by the father against the man who had sex with her. A breach of promise to marry action was a form of breach of contract lawsuit brought when a formally engaged couple did not marry, and could only be brought by a woman against a man (a woman has a common law right to change her mind about a marriage engagement). So, neither of these actions could have been part of a divorce lawsuit.

This Court rule was formalized as a statute in 1933. The role of civil juries in England and Wales further contracted over time due to case law and other developments, to the point that: "In 1998 less than 1% of civil trials in England and Wales were jury trials and these were principally defamation cases."

Women began to serve on juries in England and Wales in 1919.

Scottish jury practice and procedure has always been separate from that of England and Wales.

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