Divorce

{See also Marriage}

{See also Custody of children}

Divorce

According to one source, 'There is ground for supposing that in the early periods of English law a divorce might be had by mutual consent. When, however, A.D.1215, Pope Innocent III elevated the ceremony to the dignity of a sacrament, the Ecclesiastical Courts asserted and obtained exclusive jurisdiction over it.'

Prior to 1670, people could only get a divorce if they could prove to the ecclesiastical courts that their marriage never happened legally in the first place. The courts followed canon (religious) law. The normal reasons for divorce were insanity, heresy, consanguinity and impotence. Some people believe that divorce could be granted to just one party without the spouse's knowledge, but that has never been the case. The spouse is always notified of the intent and can challenge the divorce or consent to it. The Pope was the ultimate authority on granting divorce. King Henry VIII, in 1533, is likely the most notorious divorce. This was granted by the head of the Church of England, the Archbishop of Canterbury. A man could get a divorce if his wife was unfaithful, even just once. No woman could get a divorce even if her husband had a different woman each night AND kept a string of mistresses. She had also to prove that he was guilty of incest, bigamy or 'unnatural vice'. Unsurprisingly, only four British women had ever obtained a divorce, compared with 318 men.

In 1670, English law allowed a spouse to bring an action for "criminal conversation" to establish adultery, then obtain a divorce a mensa et thoro (from bed and board) from the church and then finally to petition the House of Lords to grant the divorce.

Hardwicke's Marriage Act of 1753, set aside the old Common Law marriages and required a wedding in an approved church or chapel.

Marriage was considered to be the very basis of society, something to be held together no matter what. Until 1923 the sole ground for divorce was adultery. This meant that even if her husband beat her daily for fifty years, starved her, locked her in the house, gouged out both her eyes with a red hot poker or jumped on her belly until she miscarried, broke her bones time and again, no working class wife could get a divorce. {Read more about the Victorian wife beating epidemic here... But a single, brief, sexual liaison with another man instantly gave her husband legal grounds to divorce her, keep any money she brought into the marriage, and prevent her from ever seeing her children again. Rich women who could prove their husbands' adultery and cruelty could obtain 'a divorce a mensa et thoro' (from bed and board) for £1,500. This was a legal separation with no right of remarriage.

Lewis Dillwyn MP, in reply to a suggestion that there should be cheaper divorce, said 'that was a very large question, affecting the social and domestic relations of the whole people, and one which required very grave consideration.' He approved of it because separating persons who were ill matched might reduce wife beating. But making violence grounds for divorce was 'holding out a direct inducement to commit the assaults', and it would not help 'concubines' - women living with men outside of marriage, of whom there were many thousands among the working classes. Mr Muntz MP believed the cause of wife beating among the working classes 'was the impossibility there was, under any circumstances, of man and wife ever being separated from each other.'Source: Hansard

From 1878 a wife could obtain a separation order on the grounds of her husband's persistent cruelty, if she was convicted of an aggravated assault upon her. This gave her an incentive to report his violence to the police, because it could be her means of escape. In 1902 the husband's habitual drunkenness was added to the grounds for legal separation. During the years 1895-99 there was an annual average of 600 applications for these matrimonial orders. The annual average for 1900-04 was 1,400.

In 1857, the Court for Divorce and Matrimonial Causes, based in London, was established, taking the divorce duties for the first time away from the church courts.

The 1857 Divorce and Matrimonial Causes Act re-asserted the double standard of fidelity. Simple adultery on the part of the wife was grounds, but adultery on the part of the husband had to be combined with desertion, cruelty, incest, bigamy or practising an 'unnatural vice' (sodomy, bestiality, rape of another woman) to be grounds for divorcing him. One newspaper editor commented:

The existing law supposes that a wife may condone her husband's lapses [i.e. adultery] from strict marital propriety, while it imposes no such exercise of lenity or forbearance upon the husband. Reasons for this distinction being made at once suggest themselves; but modern jurisprudence is not quite satisfied with them, and an opinion is growing that the husband is unduly favoured in this respect. (Bristol Mercury, 7 March 1857)

Even Gladstone said 'he could not understand why in framing and passing the act we chose to introduce a new and gross inequality against women and in favour of men'. Reasons given for supporting the inequality included (a) Any husband would commit adultery purely to get a divorce; no wife would, for it would destroy her respectability; (b) Adultery by a wife is more serious because she might conceive a child by her lover; (c) A husband is humiliated if his wife 'yields to another man what belongs to her husband', whereas a wife is merely 'slighted in favour of a rival' (Letter to the Daily News, 25 April 1857). Furthermore, no husband could be granted a divorce if his wife could prove that he, too, was an adulterer, or that he had condoned her adultery (for example been present, or been aware then had sex with her afterwards.

That adultery was a crime against the male owners of women was enshrined in the law. An unfaithful wife's husband (known as a 'cuckold' - there is no equivalent word for a wife) could sue the third party (the 'co-respondent') for monetary damages for having sex with his wife. No wife could sue her husband's mistress. Such an action had to be tried by a jury; the judge could then decree that any damages be settled on the children, or even the wife, for her maintenance after the divorce.

The double standard was abolished in 1923, but adultery remained the sole ground for both parties until 1937, when cruelty and desertion were added. Only in 1969 were there more grounds for divorce.

MPs comments on separation and divorce

During the debate following the Second Reading of the Married Women's Property Acts Consolidation Bill on 9 June 1880, Charles Warton MP remarked: 'The Bill tried to create a monstrosity never intended by God -- a married woman separate from her husband.' Source: Hansard

During the debate on the Custody of Infants Bill, 1838, Mr V. Smith said that 'In the present condition of society the situation of the wife living separate from her husband was far worse than that of the husband living separate from his wife. What did the husband suffer from this state of things? Did any man refuse to associate with a husband living separate from his wife unless it was charged against him that he had exercised some enormous cruelty against his wife? But was the rule the same with regard to the wife living separate from her husband? No. There was a scandal abroad which deprived her of the position she formerly occupied in society. She was tried with far greater severity than the man.'Source: Hansard

During the House of Commons debate about the 1857 Divorce and Matrimonial Causes Bill Mr Drummond MP said:

...the word he proposed to introduce into the clause as a ground of divorce was the word 'cruelty'. They must remember that women were not heard in that House, and he believed it was universal throughout a jurisprudence to challenge the Court, where there was any manifest unjust bias. Now, that House was a court of men judging women according to their own estimate and for their own purposes. He now called on them to do justice to a suffering class, whose sufferings they did not know, because, as with those who suffered in the Inquisition, those who knew their sufferings were interested in concealing them. They might think that they had done much in protecting women against the brutal violence of drunken husbands, but there were much more serious lacerations of heart which took place in the higher regions. When the discussions on the slave trade were going on, not one West India planter ever gave his vote in favour of the slaves, nor did any Member for a town -- such as Bristol or Liverpool -- interested in the slave trade ever do anything but vote against Abolition. So it was in the present case... [He then spoke of] a young lady married to a gentleman who was heir to a large fortune...Within a year or two after their marriage he had three mistresses living in three different houses in this town. With one or other of them he generally supped, and often came home intoxicated, when his servant undressed him and carried him into his wife's bedroom. She begged to be allowed to sleep in another room, but he said he would then bring home one of his mistresses to live in the house. For her children's sake she submitted to this treatment for nearly twenty years, when he died. During his life her health was twice injured by her husband's profligacy {possibly he referred to some kind of infection?], and when her sons were about fourteen years of age her husband took them constantly to visit his mistresses. Source: Hansard