Monday, October 22, 2012

Let no Man put Asunder - Introduction to the Laws of Divorce

Following on from my earlier posts on the Laws of Succession and the Laws of Marriage, this month is an introduction to the English Laws of Divorce. 

Even today, marriage is one of the most important contracts two people can make it, but unlike many other contracts, it was, until very recently, extremely difficult to get out of.  It is only in my lifetime that divorce has become the “out clause” we all know.

Interestingly in the early days of Christian England, divorce by consent or for adultery or desertion was not unknown. It was only the Medieval canonists who, holding to  a strict interpretation of the scriptures, decreed that the bonds of matrimony were indissoluble during the lives of the parties.  The words of the old Book of Common Prayer marriage ceremony read “Let those whom God has put together let no man put asunder”.  Church courts would only grant divorce on the ground that the marriage had been void from the beginning. Eg. A want of consent to the marriage, precontract, consanguinity, affinity and impotence at the time of marriage.
Table of Consanguinity
from Liber Floridus 12th century
  •  Consent – Want of consent could be evidenced not only by duress but the age of the parties. The age of “consent” was fixed at 7 years old but until the age of puberty (12 for girls and 14 for boys – this minimum age was raised to 16 for both parties as recently as 1929) either party could avoid  the marriage. Parental consent was a requirement for the marriage of minors, although if the marriage had been solemnized and the parents raised no objection the marriage held.
  •  Consanguinity and Affinity– A Table of Kindred and Affinity formed part of the Book of Common Prayer and laid down those who could not marry. It was based on sound genetic propositions (eg a man may not marry his mother). Affinity is even more remote – it implied a relationship through marriage or carnal connection eg if a man fornicated with X’s sister he was forbidden from marrying X. Again some of the more remote affinities were only removed within the last 100 years (see the Deceased Wife’s Sister’s Marriage Act of 1907)
  •  Impotence (failure to consummate).  Incurable impotency had to be proved and might arise from malformation or invincible frigidity. A person found to be incurably impotent (inhabilis ab intitio) was not free to marry again but frigidity was no bar to a subsequent marriage!

Divorce a mensa et thoro (from board and bed). The feeling that divorce ought to be permitted in the case of matrimonial wrongs, such as adultery led to the development of a form of judicial separation whereby the parties, although remaining indissolubly united, were permitted to live apart (but not remarry. It could be granted for misconduct such as adultery, cruelty and sodomy and an innocent wife could be awarded alimony for her maintenance.

Surely the most famous divorce in history was that of Henry VIII and his wife Catherine of Aragon. Under the laws of affinity, Henry had required a papal dispensation to marry his brother’s wife.  When Henry sought to put the marriage aside on the grounds that the papal dispensation was ultra vires, the Queen claimed that her marriage to Prince Arthur had never been lawful as it had tot been consummated.  Only when Henry had the control of the church in his grasp did he “divorce” Catherine on the grounds that the marriage was void. His subsequent marriage to Ann Boleyn was also declared void although no reasons were officially given but he may have argued pre-contract or affinity (through his own relationship with Mary Boleyn). The effect was to bastardise Elizabeth. He divorced Ann of Cleves on the grounds of her precontract with Francis of Lorraine, incapacity and duress (sic!).
Catherine of Aragon

The legacy of Henry’s manipulation of the Canon Law and the English Reformation was a revision of the laws surrounding divorce.  Archbishop Cranmer proposed full dissolution of marriage for good cause (such as adultery, cruelty and desertion) but his proposals were never implemented.

Through his actions, Henry had bastardised both his daughters but both Mary and Elizabeth passed Acts of Parliament reinstating their status and thereby demonstrating that the civil Parliament could interfere with the canon law.  In 1548 the Marquis of Northhampton sought to divorce and remarry. The validity of his second marriage was upheld by Act of Parliament.

In 1670 divorce on the grounds of adultery was given effect by statute when Lord Roos’ marriage was dissolved and he was permitted to remarry but adultery remained the only ground for divorce and in order to obtain it the husband to first bring an action to prove the adultery at common law, then obtain a divorce a mensa et thoro from the Ecclesiastical court on the grounds of that adultery and finally petition the House of Lords. The parliamentary procedure was long winded and expensive but it was invoked about 300 times during the 18th and 19th centuries. It was exclusive to the wealthy classes and permitted only for male petitioners.

The only remedy still available for the more lowly classes was the dissolution on the basis of the marriage being void (a vinculo matrimonii) or legal separation (a mensa et thoro). The institution of civil marriage in 1836 removed the ecclesiastical objections to remarriage after divorce but did nothing to facilitate divorce itself.  Reform came in 1857 with the establishment of the Court for Divorce and Matrimonial Causes which abolished the divorce jurisdiction of the church courts. All it did was improve the machinery for obtaining a divorce. The only ground for divorce remained adultery and in the case of a wife petitioner, cruelty and desertion had to be proved as well.  The abuse of the Victorian divorce court by society families became a scandal; formal evidence of adultery was frequently provided with little scrutiny! In the twenty years from 1867 to 1887 the number of divorces rose from 130 to 372.  Compare that with the USA where divorces, under a different legal system,  in the same period rose from 9,937 to 25,535.

It was not until 1935 that true reform in the shape of A.P Herbert’s Act came about.  Divorce on the grounds of cruelty and desertion (for three years)  were included. Wives had the same rights as their husbands. The Church of England responded by legislating that divorced persons should not be allowed to remarry in the Church. “No fault” divorce or divorce on the grounds of “irretrievable breakdown of marriage” only came into existence in the 1960s and 1970s.  

And to end on a personal note, in the late 1920s my own grandmother ran off with another man. She was in the terms of the day, a “bolter” (a term familiar to those who have read Love in A Cold Climate). Although she was the defaulting party my grandfather, being a gentleman, ‘took the blame’.  A hotel room in Brighton was hired and my grandfather seen to enter it in the company of a woman who was not his wife (thus proving adultery). The divorce obtained, my grandmother did remarry (twice in fact…everyone should have a scandalous grandparent). She was not permitted to remarry in the Church (even if she had wished to do so), nor I believe, permitted to take communion!

Source:  An Introduction to Legal History J.H. Baker/Osborn's Law Dictionary

Alison's latest book, GATHER THE BONES, is now available in print as well as digital.


Nicole Hurley-Moore said...

A fascinating post, Alison. The medieval laws of consanguinity could be quite convoluted and far reaching. However there were ways around it. Sometimes, special dispensation could be applied for/bought from the Church.

Suzi said...

Another great post on legal matters.
Loving them all,
Suzi Love

Anonymous said...

I think 4 women did manage to obtain divorces before the 1857 divorce law. They succeeded where others failed because the husbands committed adultery with the wives' sisters making it impossible for the wife to ever receive him again without being part of the incest.
I think the four divorces were spread over many decades.
Poor people didn't bother with the law or the church. Desertion and bigamy abounded and some men even sold their wives.

Alison Stuart said...

Nicole, I was just reading an interesting post on consanganuity and affinity ( . It really wasn't regularised until 1835 and marriage to in-laws could lead to a marriage being voidable.
It was all open to interpretation by whoever you found to marry you and if no-one objected then the marriage could go ahead.

Alison Stuart said...

Anon... You just have to look at contemorary literature to see how it was done. Is it Thomas Hardy's Mayor of Casterbridge that begins with the wife being auctioned off?

And what about Mr. Rochester in Jane Eyre? It's easy for us with our twentieth century eyes to say "Why didn't he divorce" his first wife?

My own great+ grandmother (c1801) was a bigamist (although that may have been a mistaken belief her second husband was dead!) but in the days of poor communication and long distances who was to prove otherwise?

Erin Grace said...

What a fabulous article! And you have such an interesting

Blythe Gifford said...

Few people know that Margaret Tudor, Henry VIII's sister and queen of Scotland, remarried after the king died and then got a divorce from the man she married. This was before Henry's. It was NOT an annulment (they had a child togther), but they apparently colluded to cook up a "pre-contract" that made their marriage invalid. Divorce WAS possible, even before Henry!

Alison Stuart said...

You are quite right, Blythe. If lack of consent, precontract etc. could be proved, it made the marriage voidable ie it meant that the marriage had never been legal in the first place so it was not so much a divorce as an annulment of an illegal contract. As with all things it helped if you were royal and/or had bags of money to throw at the problem.

Cassandra Samuels said...

Thank you for another wonderful post. All the things we never knew we never knew.

Anonymous said...

Great post, Alison. There was at least one woman who was granted a divorce granted on the grounds of extreme physical abuse. Also, I believe it was only a man's inability to consumate the marriage that counted.

Alison Stuart said...

Hi Ella...Annulment could be granted based on a wife's "frigidity" - although the mind boggles as to how that was ever proved! As I said in the article for the unfortunate man, he was then deemed unfit to contract another marriage while the "frigid" woman could remarry.
For a writer it is a minefield of plot possibilities!

Lacey Falcone said...

Alison - Interesting post...great breakdown of all the legal means of divorce "back then". You know, Eleanor of Aquitaine was divorced and of these days, I'd really love to get into her story.

Alison Stuart said...

Given the way royal children were bartered around, I don't think it was very hard for the royal lawyers to find evidence of "precontract" and use that as the means to declare a marriage void. However this has to be distinguished from divorce. It was not a divorce in the sense it was never a legal marriage in the first place. It's s small distinction but an important one at the time.
Fascinating stuff - from a lawyer's point of view!

Anonymous said...

Marvelous... wow I am jealous Alison I'm a irm believer that everyone should have a scandalous relative in
the cupboard. :)

I'm thinking divorce/probably more annulment was arranged for bigamy? If one party was already married and unbeknownst to another?
It happens in one of my stories, and to date I checked it out that this was applicable. But I am open to further facts if I have come across the wrong information.
Loved this post ... thanks