Edward, Mrs Simpson and the Divorce Law

On December 11th, 1936, King Edward VIII abdicated so that he could ‘marry the woman he loved’, the American Mrs Wallis Warfield Simpson. But in fact Mrs Simpson was a married woman and so not free to marry the King, or anyone else for that matter. She had, it is true, started divorce proceedings alleging that her husband Ernest had committed adultery with an unnamed woman at a hotel in the Thames valley. Mr Simpson had not offered any defence, and the divorce court had accordingly granted Mrs Simpson a so-called divorce decree nisi. But the decree could not be made absolute (thereby legally ending her marriage) for six months.

The reason for this compulsory waiting period was that, at that time, the law refused to accept divorce by consent. The fact that a couple had agreed on a divorce – that there had been ‘collusion’ as lawyers put it – was not something to be welcomed: on the contrary, it was a ground for rejecting the petition. And there were other possible difficulties as well – not least, the fact that only an ‘innocent’ husband or wife was entitled to divorce, and some people suspected that Mrs Simpson had been the King’s mistress, or at any rate that she had had several other lovers.

How was anybody to find out the truth of such things? That was the job of a Government lawyer (the ‘King’s Proctor’). It was his responsibility to investigate divorces – especially undefended divorces – in order to make sure that the applicant was ‘innocent’ and that the decree had not been obtained by agreement or even by faked ‘evidence’. If the Proctor found that anything was suspicious, he could ‘intervene’ to put the facts he had discovered before the court. The court then had the power to rescind the decree nisi and thus prevent the husband and wife from marrying again. Furthermore even a private citizen could (on the payment of half-a-crown – less than £5 in today’s money) intervene to ‘show cause’ why the decree nisi should not be made absolute.

Stanley Baldwin, the Conservative prime minister of the National Government, and his Cabinet, firmly believed that Mrs Simpson could not be allowed to become queen. The public, in the Dominions as well as in Britain, would not tolerate having a woman with two living ex-husbands on the throne. Nor (the Government decided) would it be legally possible for her to marry the King ‘morganatically’, that is without becoming queen.  Edward VIII, faced with the choice of either remaining King or giving up the throne and marrying Mrs Simpson, came to a clear decision: he would abdicate. But there were some who thought the King’s abdication would be a disaster for the monarchy and the country. The King, they thought, must therefore be ‘saved from himself’. So, imbued with patriotic motives, they determined to prevent the divorce by looking for evidence that the King and Mrs Simpson had indeed committed adultery. And, as Sir John Simon, the Home Secretary, discreetly put it, there probably would be people who could give evidence of the couple’s ‘comings and goings’. These people saw a ‘citizen’s intervention’ as the best way of stopping Mrs Simpson getting a decree absolute and so (they thought) of keeping the legitimate king on the throne.

There was another difficult problem. So long as Edward remained on the throne, the principle that a king ‘can do no wrong’ prevented his being brought into the case. But if he ceased to be king this protection would disappear. And since the King’s Proctor routinely looked into all undefended divorce cases, it would be his duty to ‘put his sleuths’ on to the case, and see if evidence that Mrs Simpson had committed adultery could be found. From the King’s point of view, therefore, the best thing to do would be to hold out until the end of the six months’ waiting period. Perhaps public opinion would by then have moved in favour of allowing Mrs Simpson to become queen; but even if the King did in the end abdicate he would at least know that he could legally marry.

From the Government’s point of view, however, a further four months’ uncertainty would be intolerable. For the King too, four months of uncertainty, deprived of contact with Mrs Simpson – it was routine in such cases to advise a clear separation lest someone suggest that ‘intimacy’ (as the Sunday newspapers of the time referred to it) had taken place – and knowing that private detectives were examining his every movement cannot have been attractive. An inner circle of ministers therefore looked for a solution.

The idea of some ‘special action’ to make the Simpson divorce absolute at once was born. One suggestion was an approach to the President of the Divorce Court to expedite the proceedings, but here (as happened repeatedly during the crisis) the Government stood firm on the constitutional proprieties: a decree of divorce is (Simon warned) ‘a judicial act and the Executive could never dream of interfering ... It would be a breach of the Constitution to attempt it, and moreover the attempt would fail, for the judges would be the first to resist such interference.’

On the other hand, the judges were bound to obey Acts of Parliament. So why not have two Bills, one to give effect to the King’s abdication, the other making the Simpson divorce absolute forthwith? The inner circle of ministers (including Prime Minister Baldwin) began to favour this: they would ‘frankly’ face the situation ‘on the basis that there was a mess and that the English way of dealing with it was to clear it up thoroughly at the earliest possible moment’. But at a tense meeting on Sunday December 6th, 1936, the majority of the Cabinet rejected what would inevitably be seen as a deal whereby the King would agree to abdicate in exchange for being allowed to marry.

The King’s adviser, Walter Monckton KC, was called in to the Cabinet room. He threatened that the King would tough it out: he would need ‘weeks rather than days’ to reach a decision. But in fact the King refused to delay: ‘our cock’ (as the press lord, Max Beaverbrook, was to put it) ‘won’t fight’. The King wanted to close his reign with dignity, clear the succession for his brother with the least possible embarrassment and, above all, avoid all appearance of faction. But the uncertainty was far from over.

Mrs Simpson had not seen her own solicitor, John Theodore Goddard, since the divorce hearing on October 27th; and he apparently felt she had misled him. The rumours that there would be a ‘patriotic’ citizen’s intervention worried him – not least because he thought that such an intervention would be successful. On Monday December 7th, 1936, the King (who had heard that Goddard was planning to fly out to the South of France to see Mrs Simpson, who had taken refuge there) came to hear of this. The last thing he wanted was for Goddard to put doubts into her mind. The King therefore summoned Goddard to his presence and expressly forbade him to make the journey. Goddard then went straight to Downing Street and asked for Stanley Baldwin’s protection. The Government at once provided the plane in which he then flew to Cannes.

In Cannes Goddard warned his client that a citizen’s intervention was likely to be successful. It was (he said) therefore his duty to advise her to withdraw her divorce petition. Mrs Simpson, not surprisingly, now became uneasy about the future. But she refused to do what Goddard advised. True, she authorised him to say that she was ‘willing to ... do anything to prevent the King from abdicating’. But everyone knew that the King had made up his mind to go, even if he could not marry Mrs Simpson. Indeed, when Baldwin confronted the King with the awful possibility that he would never be able to marry her, his only response was to walk up and down the room repeating ‘This is the most wonderful woman in the world’. So, at 1.25 on the afternoon of December 11th, 1936, Edward VIII’s last act as King was dutifully performed: he gave the Royal Assent to His Majesty’s Declaration of Abdication Act. That night he left England for a lifetime of exile.

The next four months were extremely anxious, and there was one especially worrying matter. On December 9th, Mr Francis Stephenson (a solicitor’s clerk) exercised his right to make a citizen’s intervention in the Simpson divorce proceedings. He claimed (among other things) that Mrs Simpson had not disclosed that she had ‘habitually committed adultery’ with the King. Although a few days later – having been impressed by the royal broadcast on December 11th – he tried to withdraw his intervention, the court rules did not allow him to do so. Accordingly the divorce court directed that the papers be referred to the King’s Proctor.

The Proctor had, in any case, decided that he should investigate the case, not least because of the letters pouring in from members of the public complaining that there was one law for the rich and another for the poor, that pressure had been brought to bear to stop the Proctor investigating the case, and that there had been a conspiracy that the authorities would abstain from administering justice. And so the Proctor – in fact, the Treasury Solicitor, head of the Government Legal Service – sent his men to Cornwall, Newcastle and other parts of the country to investigate rumours.

His staff interviewed stewards on the yachts the couple had used for Mediterranean cruises; and the Proctor personally interviewed Mrs Simpson’s husband, the solicitors involved in the divorce case, and other lawyers acting for a writer of detective stories who claimed he had evidence about ‘intimacy’ during a royal visit to Budapest.

It is true that there are, to the modern eye, some surprising gaps. No one interviewed Mrs Simpson’s Lady’s Maid because (in the language of the official files now available in the National Archives) servants

still in the employ of any person owe a duty to their employers, and it is not the practice of the King’s Proctor (and it would indeed be improper for him) to endeavour to get information from such servants. The King’s Proctor has also made no attempt to interview any of the servants of the Royal Household for obvious reasons.

But, with those exceptions, the Proctor satisfied himself that everyone who was in a position to offer information had been interviewed.

Even so, there was nothing which could be remotely described as ‘evidence’: it was all gossip from the Garrick Club, from the Inns of Court and American newspapers. Accordingly, the Proctor did ‘not think any useful purpose would be served by continuing his enquiries’.

The President of the Probate Divorce and Admiralty Division of the High Court was anxious to dispel suggestions that there had been a cover up. (He would have been even more anxious if he had known that Mrs Simpson was stressing the importance of getting ‘the legal side fitted up’, urging the Duke of Windsor – as Edward had become – to write to King George VI and get the Attorney-General, Sir Donald Somervell, to ‘suppress’ the suit.) So, on March 19th, 1937, there was a great set-piece hearing in the President’s court. Somervell made a ‘carefully prepared’ statement, insisting that there had been no pressure to prevent the Proctor making his investigations and that he had not treated the Simpson case differently from any other. The President gave a long judgement dealing with technicalities, but the centre-piece was a firm finding that there was ‘no evidence whatever’ of anything which could stop Mrs Simpson having her divorce. And so the decree was made absolute; Mrs Simpson was free to marry the Duke, and she did so in France on June 3rd, 1937. As Attorney-General Somervell noted in an unpublished memoir, it had all turned out well.

In January 2003 the official papers about the abdication (formerly closed until 2037) were released by the Public Record Office. These are naturally of interest to scholars, but in fact much of the material was already well known from the published and other records of those involved. There seems little material for sensation. But there is one exception. The files include Special Branch Reports to the Metropolitan Police Commissioner (Air Vice Marshal Sir Philip Game GBE).

These Reports certainly make it clear that the police officers concerned did not care for the Simpsons or their life style – Ernest Simpson, for example, is described as a man ‘of the bounder type’; he and his wife had entertained lavishly and lived on a scale ‘far in excess’ of his earnings, and they associated with drug addicts and with a woman ‘very partial to coloured men’. In 1935 and 1936 Special Branch officers kept watch on Mrs Simpson’s meetings with Prince Edward; and the Commissioner was told that Mrs Simpson had ‘another secret lover’ – a ‘very charming, very good looking, well bred’ car salesman who was also an ‘excellent dancer’. Special Branch reported that this man (albeit the son of a clergyman and husband of a General’s daughter) was an ‘adventurer’; and that ‘intimate relations take place’ during his meetings with Mrs Simpson.

Earlier this year, all this provided the press with good copy. In addition, the fact that such observations and reports were made at all may provoke some thoughts about the role of the police in what is supposed to be a free society. But their real significance is to raise questions about whether the ‘official’ version of the Simpson divorce is correct, or whether in truth there was a gigantic cover up.

If Mrs Simpson had indeed had ‘intimate relations’ with the charming, well bred car salesman, then she had no right to divorce her husband, for a petitioner had to be ‘innocent’. Why did the King’s Proctor’s ‘thorough investigations’ not uncover the Special Branch reports? After all, these went to the Police Commissioner himself, and he was, at the time of the Abdication crisis, in frequent and close contact with the Home Secretary, Sir John Simon. To abstain from asking servants to betray their employer’s secrets is perhaps one thing; but to be blind to reports made in their official capacity by those whose only purpose is to serve the interests of law, order and justice seems quite another.

We shall never know the whole truth. Anyone who has read the private correspondence and papers of Sir Donald Somervell and Sir John Simon, and who knows the reputation for integrity of the King’s Proctor, Sir Thomas Barnes, would find it difficult to the point of impossibility to believe that they were knowingly party to suppressing the facts (as distinct from having, as their private papers again make clear, their own real suspicions about Mrs Simpson’s relationships).

On balance, it seems that the problem is likely to have been simply one of bureaucratic compartmentalisation rather than deliberate concealment. In short, no one thought to ask the Special Branch. Furthermore, perhaps the Reports would have made no difference anyway. The courts can only act on evidence of facts, and the Special Branch Reports do not make it clear on what basis the confident assertions they contain were founded.

The Abdication crisis has more significance than is often realised for the development of English divorce law. At the height of the crisis, Parliament had before it the Bill of A.P. Herbert, novelist, barrister and Independent MP for Oxford University since 1935, seeking to make the first major change in Britain’s divorce law for eighty years. Herbert was particularly concerned that the prevalence of collusive ‘hotel’ divorces made the law appear ridiculous; and the Simpson divorce case seemed to many to be a prime example. His Bill successfully passed into law as the Matrimonial Causes Act of 1938.

In fact, the anti-collusion provision which Herbert persuaded Parliament to accept – and his task had been made much more difficult because the crisis distracted Members’ attention from his Bill – turned out to be largely ineffective; and, as a result, the notion that the machinery of divorce was an absurd anachronism became even more difficult to refute. Even so, it was not until 1969 that the Divorce Reform Act finally accepted that a couple whose marriage had suffered ‘irretrievable breakdown’ should not only be allowed but even encouraged to settle their futures by agreement.

The publicity given to the Simpson divorce may have had a part (albeit a small part) in increasing scepticism about the effectiveness of a divorce law which, supposedly in the interests of upholding the stability of family life, denied divorce to all save the innocent and protesting, and in particular denied it to those who agreed that their marriage was broken beyond repair.

Stephen Cretney is Emeritus Fellow of All Souls College, Oxford, and the author of Family Law in the Twentieth Century: A History (Oxford University Press).