Catalogue description Records of the Family Division and predecessors

Court of Probate

The Court of Probate was established on 11 January 1858 under the Court of Probate Act 1857, taking over from the various ecclesiastical courts in England and Wales, including the Prerogative Court of Canterbury, and other courts having testamentary jurisdiction, the duty of granting probates of wills or letters of administration of the effects of deceased persons. The act provided that there should be one judge of the court.

Subsequently this judge was also appointed judge ordinary of the Court for Divorce and Matrimonial Causes established under the Matrimonial Causes Act 1857.

A Principal Registry which, under the Matrimonial Causes Act 1857, also served the Court for Divorce and Matrimonial Causes, was attached to the Court of Probate in London, together with a number of District Registries throughout England and Wales. The Lord Chancellor was empowered to direct the transfer of the clerks and officers of the Prerogative Court of Canterbury to similar posts in the new court unless they were considered incompetent to perform their duties.

It was also provided that existing diocesan registrars should be entitled to be appointed by the judge of the court as district registrars subject to the same test of competence.

Under the Court of Probate Act 1857 appeals from any order or decree of the court lay to the House of Lords although appeals from ecclesiastical courts pending before the Judicial Committee of the Privy Council in respect of any grant of probate or letters of administration could still be prosecuted there.

The new court was open both to the civil lawyers who had formerly practised in the ecclesiastical courts and the common lawyers operating in the superior courts of law and equity. In turn, the civil lawyers were entitled to practise in the superior courts.

By the Supreme Court of Judicature Act 1873 the jurisdiction of the Court of Probate was transferred to the High Court of the Supreme Court and joined with that of the Court for Divorce and Matrimonial Causes and the High Court of Admiralty in the Probate, Divorce and Admiralty Division.

Court for Divorce and Matrimonial Causes

Following the Report of the Royal Commission on the law of divorce in 1853 a Court for Divorce and Matrimonial Causes was established on 11 January 1858 under the Matrimonial Causes Act 1857, taking over from the ecclesiastical courts in England and Wales all jurisdiction in matrimonial matters except the granting of marriage licences. The court was also given new and more extensive powers than those possessed by the church courts to grant a petition for a divorce. The full court comprised the Lord Chancellor, the three chief justices and the three senior puisne judges of the common law courts, together with the judge of the Court of Probate.

The latter, as judge ordinary of the court, was concerned in all cases. However, by the Matrimonial Causes Act 1859 all the judges of the common law courts were made judges of the court and by the Matrimonial Causes Act 1860 the judge ordinary was empowered to exercise all the powers previously exercised by the full court.

Under the Legitimacy Declaration Act 1858 the court was also empowered to hear and determine petitions for a declaration of legitimacy or validity of marriage or for a right to be deemed a natural-born subject. Appeals from decisions of the judge ordinary of the court lay to the full court or, in certain cases,to the House of Lords.

Under the 1857 act all persons admitted to practise as advocates or proctors in the ecclesiastical courts were entitled to practise in the new court together with barristers, attorneys and solicitors entitled to practise in the superior courts

By the Supreme Court of Judicature Act 1873 the jurisdiction of the Court for Divorce and Matrimonial Causes was transferred to the High Court of the Supreme Court and joined with that of the Court of Probate and the High Court of Admiralty in the Probate, Divorce and Admiralty Division.

Probate, Divorce and Admirality Division of the High Court

The Probate, Divorce and Admiralty Division of the High Court was established under the Supreme Court of Judicature Act 1873. The miscellaneous jurisdiction of the division over, as Sir Alan Herbert once put it, 'wills, wives and wrecks' is generally ascribed to the fact that these three parts of the law had all been greatly influenced by the Roman law; and this was as true of proceedings under the canon law of the church courts, which had dealt with probate and matrimonial causes until 1857, as it was of those of the Admiralty Court.

The 1873 act provided that appeals in admiralty actions should be transferred from the Judicial Committee of the Privy Council to the Court of Appeal. The jurisdiction of the Privy Council in prize appeals under the Naval Prize Act 1864 remained unaltered but as this was not clearly retained by the 1873 act it was later expressly declared by the Supreme Court of Judicature Act 1891. Appeals in matrimonial and probate causes, previously heard by the House of Lords, also passed to the Court of Appeal.

The central offices of the division were the Principal Probate Registry, which was also the Divorce Registry, situated at Somerset House, and the Admiralty Registry, housed in the Royal Courts of Justice, under the control of its own registrar. Cases heard by the Divorce Registry arose from petitions for decrees of divorce, nullity, judicial separation and restitution of conjugal rights. Outside London much of the business of the division was entrusted to District Probate Registries and to District Registries of the High Court.

The former had first been established under the Court of Probate Act 1857 and a Liverpool Registry of the High Court of Admiralty had been set up under the Liverpool Admiralty District Registrar Act 1870. The admiralty jurisdiction of County Courts and other inferior courts was also confirmed under the 1873 act. Taxation of costs in probate and divorce actions was undertaken by registrars of the Principal Registry and in admiralty cases by the registrar. From 1892 until 1904 the president of the division was also judge advocate general.

Under the Administration of Justice Act 1970 the Probate, Divorce and Admiralty Division was re-named the Family Division and the High Court's jurisdiction in divorce and non-contentious probate cases passed to this division, together with other High Court business of a family nature such as guardianship and wardship proceedings previously dealt with by the Chancery Division. Contentious probate work passed to the latter division and a separate Admiralty Court was established as part of the Queen's Bench Division.

The Family Division of the High Court

The Family Division was assigned jurisdiction in matrimonial causes and proceedings and non-contentious or common form probate business. Other High Court business of a family nature was taken over from the Chancery Division to which all other probate business was assigned. Causes and matters involving the High Court's admiralty jurisdiction, or its jurisdiction as a prize court, were assigned to the Queen's Bench Division.

The Family Division was empowered to hear appeals from decisions of County Courts and magistrates' courts in certain matrimonial and guardianship proceedings. Centrally, the Principal Probate Registry became the Principal Registry of the Family Division and outside London, probate business continued to be taken by District Probate Registries. Taxation of costs in the division is undertaken by the registrars of the Principal Registry.