Custody rights and domestic violence

The custody of children had already been the subject of parliamentary action in 1839. Previously mothers had no rights at all over their children if the marriage broke down.

Child custody

A campaign to change the law was led by Caroline Norton, whose own marriage to a violent husband had failed. Her pamphlets arguing for the natural right of mothers to have custody of their children won much sympathy among parliamentarians.

The Custody of Infants Act of 1839 permitted a mother to petition the courts for custody of her children up to the age of seven, and for access in respect of older children.

Needs of the child

The Infant Custody Act of 1873 changed the direction of the 1839 Act by indicating that the correct principle for deciding custody was the needs of the child rather than the rights of either parent.

The Act therefore allowed mothers to petition for custody or access to children below the age of 16, but not in all circumstances.

Matrimonial violence

Women who were the victims of male violence in marriage were given protection under the Matrimonial Causes Act of 1878. This allowed them to obtain a protection order from a magistrates' court.

It was in effect a judicial separation and gave them custody of their children. Though not a divorce as such, it was not costly and so was available to working class women.

Also within Living Heritage

Related information

Historic Hansard

The House of Lords considers the Custody of Infants Bill