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 18^th and 19^th 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.

A MICHELIN GUIDE TO A STORY IDEA

Writers are often asked where they get their idea for a story. Inspiration can strike in the most unexpected ways and sometimes there is no one trigger point for a story. 

GATHER THE BONES is a story that came from a number of different sources but it is perhaps a little brown book published in 1920 that I found at the back of my parents bookshelves that sowed the seeds of my hero, Paul’s war. “Ypres and the Battle for Ypres 1914-1918, An illustrated history and guide”.

 It seems extraordinary that less than two years after the end of the war there was already a tourist industry around the battlefields, but the clue comes from a little insert on the town of Ypres which describes it as the “Centre for English, French and American Pilgrims”. In this little leaflet are advertisements for “Touring Cars” (wreaths by arrangement “placed on graves and photographed”), Hotels bearing the names “The Splendid” and “Hotel Britannique”. A good cup of tea in three minutes can be obtained from the Patisserie and Tea Rooms of Me Ve Vandaele on the Grand Place.

The Michelin Guides are ubiquitous today and I have a small collection of the narrow green guides for parts of France I have visited. It began in 1900 just as the first automobiles were appearing on the roads of  France. Two enterprising brothers, André and Edouard Michelin decided to produce a small guide, given free to motorists, listing petrol stations across France and information on where to get your vehicle repaired as well as crucial information on accommodation and meals.  In 1904 the Guide went international, with the publication of the Michelin Guide Belgium. 

The company must have seen the opportunity that existed and even while the war still raged it started to produce a produced a series of guides to the battlefields. According to a page in the guide, during the war itself, Michelin converted a warehouse into a hospital for the wounded, all funded by the company. It opened on September 22 1914 and the first wounded arrived that night. In all nearly 3000 soldiers were treated at the Michelin Hospital. (An illustrated booklet on how Michelin "did his bit" will be sent "free on application")

We are informed that during the Great War, Ypres was bombarded continuously for four years and 250,000 British fell defending the city. “Today Ypres is being quickly reconstructed,out of 5,000 Houses destroyed, 3,000 will have been rebuild by the end of 1923; thanks to the tenacity of the Population and financial help from the Belgium Government.”

“A number of quite up to date Hotels, providing every comfort: Central Heating, Electricity, Baths etc are already in full swing. ..The country around is agricultural, with villages and farms being rebuilt once more...Every convenience and comfort for Pilgrims and Tourists is to be had in Ypres...”

So we have hired our touring car (with a British Driver), fortified ourself with a 3 minute cup of tea and off we go. The most extraordinary thing about this little book are the illustrations: Before and After shots of little towns, chateau, woods and churches. Our touring car is pictured driving down a road lined by the broken stumps of trees and this is another taken at an intersection in what would have once been the thriving little town of Messines. 

My husband and I visited modern Ypres in 2005. Like the little towns of the Ypres salient it has been rebuilt, reconstructed to look as it did before 1914, but in the flat, green fields of the Ypres salient are the many, many cemeteries and memorials and in places it is still possible to see the craters and trenches that once criss crossed the area. 

Even ninety years after the last gun was silenced, the bodies of the missing were being discovered and a reinternment was occurring while we were there. I tried to imagine what it was like for the families of those young men who had no graveside to mourn and slowly the idea for Gather the Bones took shape.

I had Paul’s war there on my desk. In that non descript little book I had the images of the battlefields, the trenches, the concrete machine gun posts but more importantly I had the pilgrimage. Evelyn, Charlie’s mother, has to see where her son died, to really believe he is dead. It was the Evelyns who bought the 1920 Michelin Guide, booked the Hotel Splendid, bought their wreath and in their hired touring car, laid their ghosts to rest.

THE DISCOVERY OF THE ROYAL TOMBS OF UR

Firstly an apology...I know I promised a post on the Laws of Divorce but a recent visit to the Melbourne Museum's current exhibition on The Wonders of Ancient Mesopotamia (which is on until 7 October) combined with the release on September 3 of my new book, GATHER THE BONES, which coincidentally involves the 1922 discoveries of Ur, has led me in a different direction.

The Royal Standard of Ur

I have always been a closet archaeologist. In fact I was so keen on the dream of becoming an archaeologist that I had obtained all the information on enrolling in the London School of Archaeology when I finished University. Not to be. I finished my legal qualification, met a man, got married...and spent my life as a lawyer.  Not surprisingly I ADORE programs like Time Team. I don’t care if I am watching repeats or new episodes, every time a tiny chunk of dried,  black mud is identified as a piece of Anglo Saxon Pottery from the kiln on the west side of the hill in Chipping Leghorn, I feel a frisson of excitement. On my trips to England my husband and I can now spot a piece of Roman Samian ware pottery at 50 metres.

At University I had studied Ancient History under an eccentric old professor who still wore his gown and whose name, sadly, I can no longer recall. He had a passion for Sumerian History which he inculcated in me. So it is not surprising that when I was casting around for a suitable profession for the hero of GATHER THE BONES, Paul Morrow, he became a frustrated archaeologist. I often wonder if authors tend to vent their own frustrations on their characters, a sort of Munchausen by Proxy!

Despite Paul’s classical education, he had been forced into the army, rather than take up a scholarship at Oxford. Now, in 1923 (when my story is set), he works on the archaeological digs as the expedition manager rather than an archaeologist. To be honest I invented Paul’s position with the expedition, reasoning that someone had to organise the logisitics of an Expedition of this size and who better than an impoverished former army officer? 

C.L. Wooley and his site foreman Hahmoud

The early 1920s were an extraordinary time in archaeology. In Egypt, Carter had just opened the tomb of Tutankhamun and elsewhere in the Middle East activity that had been suspended during the Great War was recommencing.  In Iraq (or Mesopotamia as it was still known) Charles Leonard Woolley had begun work on the excavations, near Basrah, of a site that was to become known as the Royal Tombs at Ur. Some excavation had already been done on the site in the early part of the century but it was not until 1922 when the British Museum and the University of Pennsylvania launched a combined dig that serious excavation of the site began.

Woolley and team at the dig house

The digging season took place in the winter months to make the most of the cooler weather and Woolley commenced work in November 1922.   He commenced the dig with two large trenches near the ruins of a Ziggurat and within a week Trench A had already produced extraordinary evidence of high status burials with the discovery of gold items. Trench B produced more prosaic buildings and pottery. Feeling he lacked the experience to proceed with a full scale burials excavation, Woolley closed down Trench A and work continued on Trench B which revealed the important temple of E-Un-Mah and the beginnings of a massive wall. Time ran out and in Spring, the dig closed down and Woolley and his team returned to London (...and Paul to Holdston Hall).

Woolley supervising excavation

The excavations at Ur went on until 1934 and over that period the most extraordinary finds in the history of archaeology were unearthed. A total of about 1,850 burials were uncovered, including 16 that were described as “royal tombs” containing many valuable artefacts, including the Standard of Ur and the Lamb in the Thicket. Most of the royal tombs were dated to about 2600 BC. The finds included the unlooted tomb of a queen thought to be Queen Puabi (the name is known from a cylinder seal found in the tomb, although there were two other different and unnamed seals found in the tomb). Many other people had been buried with her, in a form of human sacrifice.

Cuneiform tablet

I did give Paul something useful to do in translating cuneiform tablets. Cuneiform had been deciphered by the end of the nineteenth century and the clay tablets are eloquent in their insight into Sumerian life. In my research for the book I came across the story of the boy who didn’t want to go to school that Paul tells Alice.

Woolley with Max Mallowan and Agatha Christie 1931

Finally a literary connection...one of the archaeologists who worked on the later excavations with Woolley was Max Mallowan, husband of Agatha Christie. Christie would accompany her husband for the dig season and, of course, her book (possibly my favourite of her books) MURDER IN MESOPOTAMIA is based on her experiences on the digs.

If you are interested in the excavations at Ur, visit http://www.britishmuseum.org/explore/highlights/article_index/u/ur.aspx and, of course, good old Wikipedia is abounding in articles. For my research I went back to the bookshelves and dug out my old text book from University days...The Sumerians by Samuel Noah Kramer, one of the definitive works on the subject.

Cromwell's Master of Spies

John Thurloe

One of the pleasures of writing fiction is that sometimes real life can be stranger than fiction and in the course of my research into the English Civil War period I have come across many interesting people whose lives read like fiction novels.

However, only one real life character appears in both of my books (The King’s Man and By the Sword)- Cromwell’s Secretary of State, John Thurloe.  Thurloe came from a fine tradition of spy masters to the English Court, such as Sir Francis Walsingham and Robert Cecil who dominated Elizabeth’s reign and saved his Queen from assassination on many occasions and as part of his duties as confidante to Oliver Cromwell,  Thurloe ran a ruthlessly efficient spy ring.

He began his career as a lawyer and by 1652 had been appointed to the position of Secretary of State.  The Commonwealth regime under Cromwell was poised in a precarious position with threats to its stability over continuing dissensions in religion matters and with the underground activities of the royalists both at home and in exile abroad. Over the following years he added the  portfolios of “Clerk to the Committee for Foreign Affairs”  and control of the post office, enabling easy interception of the mail to boost his intelligence gathering.

Thurloe  had no difficulty building his intricate network of agents. They were not hard to find. There were plenty of disenchanted and penniless royalists happy to exchange their former loyalties for regular pay. Names like Joseph Bampfield, Richard Willys, Henshaw and Wildman are all characters who cross my fictional agent, Kit Lovell, in THE KING’S MAN.  Richard Cromwell once famously remarked “Thurloe has the ability to find the key to unlock wicked mens’ hearts”.

Colonel Joseph Bampfield in particular epitomises the sort of man recruited by Thurloe. He began as a royalist and is most famous for his daring rescue of the young Prince James from imprisonment by parliament (for more about Bampfield and his lover, Ann Halkett see my blog "For the Love of a Spy” at Hoydens and Firebrands) .  He fled to the continent and by the early 1650s was working as a double agent for Thurloe who describes him in his State papers as employed in many ‘weighty affairs’.

Through this web of deceit, Thurloe managed to foil the Ship Inn plot (or Gerard’s plot) which is at the heart of The King’s Man and to infiltrate the famous SEALED KNOT , a secret royalist association whose plot to restore Charles II to the throne was foiled by Thurloe in 1655.

        Following the Restoration, inevitably, Thurloe was arrested for High Treason but he was never tried.  His extensive knowledge of foreign affairs made him too valuable to the new regime and he was released on the promise that he could be called upon to assist England in its troubles with foreign powers but he was plagued by ill health and died in February 1668 in his chambers at Lincoln’s Inn.

         During the reign of William III, workmen discovered the entire collection of Thurloe’s State Papers in a false ceiling during renovations to his former home. These are now readily available online. 

          Like his predecessors, Thurloe’s strength lay in his ability to work behind the scenes and he had the absolute trust and confidence of the Lord Protectors to whom he remained completely loyal, even advocating that Cromwell accept the crown.  Above all the temptations of high office, he seems to have remained absolutely honest and true to himself.  Even one of his political opponents writing in 1659 said:

“...(Secretary Thurloe)...having taken no man’s money, invaded no man’s privilege, nor abused his own authority, which is and merits to be great, the weight of all foreign and almost all domestic affairs lying on him...And though intelligences have been infinitely chargeable, yet without it, into whose hands had this nation fallen?...”

John Thurloe -  the consummate civil servant! 

PS My third book, GATHER THE BONES, will be published by Lyrical Press later this year. It is my first venture away from my beloved English Civil War into the shadow of another war...the Great War:  Ghosts, mystery and romance set against a backdrop of the English upper class in 1923. If you are enjoying Downton Abbey and would like to read more books set in that period then watch out for GATHER THE BONES!