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