ntil the late 1600s marriage in Great Britain was legally an indissoluble union, and the first divorce, which was granted to Lord Roos in 1670, took the form of a three-stage process that occupied a decade. First, Lord Roos applied for divorce to the Ecclesiastical Court after which two private members’ bills in Parliament finally dissolved his marriage. Although his case established divorce as a right, it did not establish the five-part procedure that afterward became the means of securing a divorce: After the husband filed a suit of criminal conversation (i.e., adulterous sexual intercourse) against his wife’s partner, he sought compensation in the Assizes, next obtained a legal separation from the Ecclesiastical Court, made a parliamentary petition, and finally received Royal Assent.
Not surprisingly given the cumbersome procedure, only three hundred or so marriages, predominantly those of aristocrats, were dissolved between 1700 and 1857. More divorces might have been granted had women been able to petition to have their marriages dissolved, but they could not, and the reasons why they could not do much to explain the reasons divorce was permitted at all — and why it required wealthy, powerful male petitioners. In a society whose nobility followed primogeniture — that is, titles, land, and wealth passed to the oldest male heir — it was absolutely essential that the heir be the actual son of the father who possessed the title. A wife’s adultery, therefore, threatened the entire political and social structure, and this centrality of inheritance of titles and land explains both why women could not petition for divorce (the husband's bastard children did not affect the line of descent, but a wife's infidelity did) and why members of middle and lower classes had no access to divorce: their inheritances were simply not politically or socially important to the ruling classes. Incidentally, the centrality of primogeniture and the line of descent also explains why a queen’s adultery constituted an act of treason — not because she personally betrayed her husband but because the results of such an act could in effect steal the throne.
During the hundred-and-fifty years after procedures for divorce had been established, a more conveniently workable process of civil separation developed, which did not go as far as an annulment of the marriage. Given that a married woman had no legal persona, trustees could act on her behalf to arrange a deed of settlement through a civil lawyer. Whilst the man was free to do as he chose thereafter, this still left the woman married and open to allegations of adultery and consequent loss of her children (Besant 1882). Annie Besant lost custody of her daughter (an arrangement under a deed of settlement) not because she had committed adultery but because, as an atheist, she was not seen as a fit and proper person to bring up a girl who would have entry into polite society.
In parallel during this period, both the Ecclesiastical Courts and civil lawyers alike came increasingly under attack. The former accepted only written submissions in divorce cases, and the latter might make a decision on the testimonial of one witness without any corroborating evidence, and neither accepted evidence from anyone with interest in the outcome. It took a Royal Commission (1850-53), much parliamentary debate about whether divorce undermined the authority of the church and destroyed home life, before the Matrimonial Causes Act of 1857 placed divorce under civil jurisdiction. Following what was essentially a secularisation of marriage and divorce, divorce still remained difficult, and there was no rush upon the one London court the Act established. The reasons why divorce remained rare included the long time the process demanded, fear of publicity, inconvenience, expenses few could afford, and fear of disrupting the social order. Nonetheless, for the first time, women could file for divorce, but the wife needed a reason in addition to adultery, such as incest, rape, bigamy, cruelty or desertion, whereas the husband needed merely to prove his wife’s infidelity — a remnant of the original procedure for obtaining a divorce. The court could rescind a decree if any evidence of collusion between husband and wife came to light. Custody of any children, whether by the husband or not, was awarded to the husband under the Custody of Infants Act (1839). Moreover, as a distinct disincentive for wealthy husbands for whom marriages of convenience had consolidated their fortunes, the divorced wife received the same rights over her property as those held by a single woman.
Related material
Bibliography
Besant, Annie. Marriage, as It was, as It is, and as It should be: A Plea for Reform. London, Freethought Publishing Company, 1882.
Frost, Ginger. Living in Sin: Cohabiting as Husband and Wife in Nineteenth-Century England. Manchester, Manchester University Press, 2008.
Hare, Augustus. The Story of My Life. Vol. 4. London: George Allen, 1900.
Hibbert, Christopher. Disraeli: The Victorian Dandy Who became Prime Minister. New York: Palgrave Macmillan, 2006.
Kha, Henry. “The Reform of English Divorce Law: 1857-1937.” Unpublished PhD Thesis. Brisbane: University of Queensland, 2017.
Layton, Catherine. The Life and Times of Mary, Dowager Duchess of Sutherland: Power Play. Newcastle: Cambridge Scholars Publishing.
Married Women’s Property and Divorce in the 19th Century, July 25, 2010 [Womenshistorynetwork.Org]
Paget, Lady Walburga. Embassies of Other Days and Further Recollections by Walburga, Lady Paget. 2 vols. London: Hutchison & Co., 1923.
Ridley, Jane. The Heir Apparent: a Life of Edward VII, the Playboy Prince. New York: Random House, 2013. Savage, Gail. S. “The Operation of the 1857 Divorce Act, 1860-1910 a Research Note.” Journal of Social History, 16 (4): 103-10. Strachey, Roy. The Cause: A History of the Women’s Movement in Great Britain. 1928. Cited in 1857 Matrimonial Causes Act [Spartacus-educational.com]. Waugh, Benjamin. William T. Stead: A Life for the People. London: H. Vickers, 1885.Last modified 28 March 2018