Divorce, Regency style

by Maria Grace

Until the last few years of the seventeenth century England was a land without divorce. After that, divorce was possible, but very, very difficult. “Between 1670 and 1857, 379 Parliamentary divorces were requested and 324 were granted. Of those 379 requests, eight were by wives, and only four of those were granted.” (Wright, 2004)

Before the Matrimonial Causes Act of 1857, which finally legalized divorce in the civil courts, divorce was governed by the ecclesiastical court and the canon law of the Church of England. The Church opposed ending a marriage. It only permitted a couple a ‘divorce’ that amounted to what we call today a legal separation. Parties could break up housekeeping and were no longer legally and financially responsible for one another. But, and this is the big one, they could not remarry.

To obtain the complete dissolution of a marriage and the right to remarry other people, Parliament had to step in and declare the couple an exception to the law of the land. Hence divorce truly required an act of Parliament.

The process could take two years and involve three separate trials. The first would be obtaining a ‘divorce’ (in today’s terms a legal separation) from one of the Consistory Courts. Then a criminal conviction proving adultery (criminal conversation) would be necessary. Finally, a Private Act of Divorcement would be brought before Parliament, which if granted, would dissolve the marriage.

Legal Separation

Canon law allowed a separation (in the era called a divorce), called the divortium a mensa et thoro (separation from bed and board). The Ecclesiastical courts permitted it for certain specified causes. The causes were life-threatening cruelty and adultery by the husband, or adultery by the wife. This act allowed spouses to live separately and ended the woman’s coverture to her husband and his financial responsibility for her.

If a spouse, man or wife, simply ran off and deserted the other, the doctrine of coverture complicated matters, because they were still legally one person. A woman could not simply leave her husband’s home without permission. He could legally drag her back under his roof—and even soundly beat her for her efforts!

If she managed to leave, the wife had no access to moneys or properties from the marriage, everything belonged to the husband. Nor did she have any right to her children. They too belonged to their father—assuming of course he wanted them.

The only part of coverture that did not favor the man in this situation was that he remained liable for his wife’s debts whether she was in his house or not. So, if she could manage to get credit, her husband would be liable.

Reasons for Divorce

If a full parliamentary divorce was pursued, there were several acceptable reasons for divorce. Adultery was by far the most common. But, all adultery was not created equal. Adultery by the wife was considered sufficient grounds for a husband to obtain divorce. For the wife, adultery had to be aggravated by physical cruelty (if he beat her to the point of threatening her life), bigamy (which no one thought was a good idea) or incest (like sleeping with the woman’s sister, clearly a great idea, right?)

Criminal Conversation

Since it was not against to law to sleep with another man’s wife, aggrieved husbands had to get a little creative in dealing with the problem. Civil laws concerning trespassing were used in bringing a wife’s lover to court since he ostensibly ‘wounded another man’s property', thus entitling him to financial compensation under civil law. If she ran off with her lover, the husband could also claim damages for the loss of her services as household manager, arguably one of her more valuable contributions to her husband’s household.The euphemistic name for the offense was ‘Criminal Conversation’ (crim con).

Interestingly, the wife was not a party a crim con suit, only her alleged lover. What’s more, women were not permitted to bring suit against other women for adultery with their husbands. (Remember the whole being property thing? That.)

Spousal Abuse

A husband’s adultery was not thought to be as much of an injury as a wife’s since any children in the marriage were assumed to be the husband’s. His property and money would be spent on their upkeep and eventually be their inheritance. Clearly he had much more to lose in the matter than she did. So, in a divorce proceeding a woman had to prove both adultery and cruelty.

If she could not prove bigamy or that her husband was sleeping with a close relation, a woman was in the unfortunate position of having to prove him intolerably cruel.

Not surprisingly, a woman’s legal coverture made this difficult.

According to Blackstone (1765)

The husband also, by the old law, might give his wife moderate correction. For, as he is to answer for her misbehaviour, the law thought it reasonable to intrust him with this power of restraining her, by domestic chastisement, in the same moderation that a man is allowed to correct his apprentices or children; for whom the master or parent is also liable in some cases to answer.

So in short, a man had the right to severely beat his wife if he deemed it appropriate. Proving cruelty was then very difficult. It is comforting to think that Judge Buller amended this understanding somewhat, with his ‘rule of thumb’: A man could thrash his wife with a stick no thicker than his thumb.

A woman could petition the court that her husband inflicted cruel and unjust harm upon her. But to get the sympathy of the court, women had to paint themselves as passive and dutiful victims of truly inhumane treatment. It could be done, but it was difficult at best as evidenced in that of the three hundred twenty four divorces granted between 1670 and 1857, only four were granted to women. (Wright, 2004)

Parliamentary divorce

After receiving a legal separation from an adulterous wife and seeing her declared guilty in a crim con trial, a man could go his separate way, repaid for the damages of his wife’s infidelity. Only a few could afford (or were willing to take) the final step that would allow them to remarry as they chose, a parliamentary divorce.

Cost was not the only deterrent to a Parliamentary divorce. The proceedings were long, messy and very public. Few honorable men wanted their names and private business made part of the public press, to be enjoyed by the ‘Great Unwashed’. Moreover, simply being involved in a divorce proceeding was enough to get one shunned form good society and banned from (Royal) Court. So only three or four cases a year made it before Parliament.

When a Private Act (or Bill) of Divorcement was brought before Parliament, the bill had three readings before the Lords. Witnesses to support the allegations of (almost always the wife’s) adultery had to be present for the second reading. The wife though, could not testify on her own defense. Of course, because at this point, she still has no legal personhood separate from her husband.

If a divorce was granted, it overturned the property settlements made in the marriage articles. Parliament took on the responsibility of redistributing assets. Typically, the woman (since in almost all cases, she was the guilty adulterer) lost all her income, property and any right to see her children. Usually a woman was granted an allowance to maintain herself, just enough for food and housing in most cases. But, since she was not permitted to sue her ex-husband, the chances of her actually collecting that allowance were slim.

Although one of the advantages of a parliamentary divorce was the ability to remarry, a divorced woman could not remarry unless the divorcement settlement specifically gave her permission to do so. Clauses could be included in the settlement that would explicitly forbid her from marrying the man with whom she had committed adultery.

Not entirely surprising, huh?

Find previous instalments of this series here:

Get Me to the Church on Time: Changing Attitudes toward Marriage

To Have a Courtship, One Needs a Suitor
Nothing is ever that simple: Rules of Courtship
Show me the Money: the Business of Courtship
The Price of a Broken Heart
Making an Offer of Marriage
Games of Courtship
The Hows and Why of Eloping
Licenses, Laws and Legalities of Marriage
Short, Simple and to the Point: Regency Weddings
After the Wedding Comes a Marriage: Regency Marriages

References
Bailey, Joanne. Unquiet Lives: Marriage and Marriage Breakdown in England 1660-1800. Cambridge: Cambridge University Press, 2003.

Blackstone, William. Commentaries on the Laws of England. Vol, 1 (1765), pages 442-445.

Fullerton, Susannah. Jane Austen and Crime. Sydney: Jane Austen Society of Australia, 2004.

Hager, Kelly. “Chipping Away at Coverture: The Matrimonial Causes Act of 1857.” BRANCH: Britain, Representation and Nineteenth-Century History. Ed. Dino Franco Felluga. Extension of Romanticism and Victorianism on the Net. Web. [Here, add your last date of access to BRANCH].

Horstman, Allen. Victorian Divorce. New York: St. Martin's Press, 1985.

Jones, J.W. A Translation of all the Greek, Latin, Italian and French Quotations which occur in Blackstone’s Commentaries on the Laws of England . Philadelphia: T7JW Johnson&Co. 1905. http://www.mindserpent.com/American_History/books/Blackstone/trans_01.htm

Koster, Kristen. A Regency Primer on Annulment and Divorce. October 18, 2011 http://www.kristenkoster.com/2011/10/a-regency-divorce-primer/ Accessed 12/20/15

Lane, Allison.. Common Regency Errors. Oct 11, 2014 http://web.archive.org/web/20141011193636/http://www.eclectics.com:80/allisonlane/common_regency_errors.html Accessed 12/15/16

Mayer, Nancy. Dissolving a Marriage. Accessed 11/30/2016

Mayer, Nancy. Marriage. http://www.regencyresearcher.com/pages/marriage.html Accessed 7/24/16.

Perkin, Jane. Women and Marriage in Nineteenth-Century England. London: Routledge, 1989.

Savage, William . Hapless Husbands and Wandering Wives June 29, 2016. https://penandpension.com/2016/06/29/hapless-husbands-and-wandering-wives/ Accessed June 29, 2016.

Stone, Lawrence. Broken Lives: Separation and Divorce in England 1660-1857. Oxford University Press, 1993.

Stone, Lawrence. The Road to Divorce: England 1530-1987. Oxford: Oxford University Press, 1990.

Stone, Lawrence. Uncertain Unions: Marriage in England 1660-1753. Oxford: Oxford University Press, 1992.

SusannahC. Georgian and Regency Divorce. April 25, 2010 http://regencywrangles.blogspot.com/2010/04/georgian-regency-divorce.html , Accessed Jan 12, 2016.

Wilson, Ben. The Making of Victorian Values: Decency and Dissent in Britain, 1789-1837. New York: Penguin Press, 2007.

Wright, Danaya C. “Well-Behaved Women Don’t Make History”: Rethinking English Family, Law, and History, 19 Wis. Women’s L.J. 211 2004), available at http://scholarship.law.ufl.edu/facultypub/128. Web. July 29, 2016.

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Though Maria Grace has been writing fiction since she was ten years old, those early efforts happily reside in a file drawer and are unlikely to see the light of day again, for which many are grateful. After penning five file-drawer novels in high school, she took a break from writing to pursue college and earn her doctorate. After 16 years of university teaching, she returned to her first love, fiction writing.

Click here to find her books on Amazon. For more on her writing and other Random Bits of Fascination, visit her website. You can also like her on Facebook, or  follow on Twitter.

A Poor Man's Divorce: The Sale of a Wife

by Lauren Gilbert





Caricature c 1820





The following notice appeared in an 1815 newspaper:

On Friday last [September 15th 1815] the common bell-man gave notice in Staines Market that the wife of ---- Issey was then at the King's Head Inn to be sold, with the consent of her husband, to any person inclined to buy her. There was a very numerous attendance to witness this singular sale, notwithstanding which only three shillings and fourpence were offered for the lot, no one choosing to contend with the bidder, for the fair object, whose merits could only be appreciated by those who knew them. This the purchaser could boast, from a long and intimate acquaintance. This degrading custom seems to be generally received by the lower classes, as of equal obligation with the most serious legal forms. 

The breakdown of a marriage is not a modern phenomenon.  Unfortunately, unhappiness in marriage was a very common situation throughout history in England (and elsewhere).  For centuries, annulment through the Catholic Church courts was an option but was not easy.  A pre-contract (an agreement to marry which was considered as binding as marriage itself), prohibited degrees of kinship (such a marriage required a dispensation; failure to obtain one would be a problem), and marriage by force or under the age of consent were all grounds for annulment.   Basically, an annulment is a statement that the marriage itself was an error.  The process was (and is) lengthy, required investigation and took several months or longer, and could be expensive in terms of donations to the church during the process.  In spite of the separation from Rome under King Henry VIII, the Protestant clergy retained similar requirements.

Divorce was another option but, again, was not easy.  In the 16^th century in Europe, adultery was established as grounds for divorce and some Protestant clergy interested in ecclesiastical reform were in favour of allowing this in England, including the provision to allow the partner who had not committed adultery to remarry.  A watershed was reached when, in 1552 the Marquess of Northampton, who had separated from his first wife due to her adultery, obtained an Act of Parliament recognizing the validity of his second marriage.   Between 1700 and 1857, there were only three hundred-fourteen Acts of this nature. (1)   Women were only allowed to petition if adultery was combined with extreme cruelty and their cases had to be handled for them by a trustee as women were legally not allowed to enter into a contract.  A rare example of this is the case of Mary Eleanor Bowes, Countess of Strathmore who succeeded in obtaining a divorce, which included rescuing what remained of her inheritance and her obtaining custody of her children.  Her story is worthy of a blog of its own.  Divorce in this manner was expensive, scandalous and took a long time as well.  Obviously, it also required rank and influence.

The question comes down to this: what alternatives did someone who did not have rank or fortune have to end a marriage?  For many, the answer was simply to desert the other party.   (This was much more common for men than women.)  Given the difficulties with travel and communications, it was possible to leave one place and establish a new life in another, which some did in spite of the risk of getting caught.  Another option for a man was to put one’s wife up for sale.   Thomas Hardy used the sale of a wife as a plot device in his novel The Mayor of Casterbridge.  In The Reluctant Widow, Georgette Heyer had a character reading items aloud from a periodical, which includes this note:  “On Friday, a butcher exposed his wife for sale in Smithfield Market...” (2)   How did such a thing work?

There is no way to know exactly when the process of selling a wife for the purpose of ending a marriage began.  It may have occurred as early as 1073, but the first established case occurred in 1553.  At its most basic, a man ended his marriage by selling his wife to another man.  Customs used for the sale of cattle were applied: a rope was put around the wife’s neck and she was led to the marketplace, paying toll along the way, where she was sold to the highest bidder at auction.  If this weren’t humiliating enough, the price was sometimes determined by weight.   As this was an auction, the auctioneer (possibly her husband) would have described her to the crowd of purchasers, possibly praising her virtues (which could improve the chance of sale and the purchase price) or listing her flaws (another potential source of punishment and humiliation).

This process took on an official form during the late 17^th century and, once sold, the woman was considered to be married to her purchaser.  Sometimes, it must be said, there was collusion as the purchaser was the woman’s lover-in some instances, the woman apparently played an active role in her sale, surprising as it may be.  Many such sales occurred at fairs,  markets and other public places.  Smithfield Market in London (see the quote from Georgette Heyer above) was apparently a popular site for such activity as about 20 wife sales were held there in the 1790’s to 1830’s(3).  It appears that being held in public caused the sale to dissolve the existing marriage and establish the new one officially.    Also, having such a sale in public would have attracted more buyers who may have had more money to spend.   It’s unclear how many such sales may have occurred, as not all were advertised or otherwise noted.  While Kirsten Olsen considers that such sales were rare, indicating that only 91 were recorded between 1730 and 1799 (4), data in Maria Nicolaou’s work suggests a much more significant number.

The reasons for the wife sales vary as much as the reasons for divorce today: inability to get along, money problems, adultery, and so forth.  Sometimes, a soldier or sailor returned home to find that his wife had taken up with another man and simply wanted to finalize the end of his marriage.  The Marriage Act of 1753 increased government control of marriage, which made it more difficult for someone to deny that a marriage had occurred; if a divorce or annulment was out of reach, a sale could end the marriage just as effectively. 

Shockingly, such sales occurred through the 19^th century into the 20^th century, although they declined due to changing attitudes, especially during the Victorian era, when women became perceived as more delicate creatures in need of protection, and the sales process was perceived as uncivilized.  Also, the Marriage Act of 1857 put the issue of divorce into the civil courts which made it more accessible and affordable.  According to Maria Nicolaou, in 1919, a woman from Tottenham said that her husband had sold her, and another attempted wife sale occurred in Northumbria in 1979.(5)    

Sources include:

Houlbrooke, Ralph A.  THE ENGISH FAMILY 1450-1700.  1983: Longman Group Ltd, Harlow, Essex, England.

Heyer, Georgette.  THE RELUCTANT WIDOW.  G. P. Putnam’s Sons, New York, NY. Published 1946, 2^nd American Edition, 1971.  (Footnote 2 from page 198)

Moore, Wendy.  WEDLOCK The True Story of the Disastrous Marriage and Remarkable Divorce of Mary Eleanor Bowes, Countess of Strathmore.  2009: Three Rivers Press (Random House), New York, NY.

Nicolaou, Maria.  DIVORCED, BEHEADED, SOLD Ending an English Marriage 1500-1847.  2014: Pen and Sword History, Barnsley, South Yorkshire, England.  (Footnote 3 P. 139, Footnote 5 p. 137)

Olsen, Kirsten.  DAILY LIFE IN 18^th-CENTURY ENGLAND.  1999: Greenwood Press, Westport, CT.  (Footnote 4 p. 47)

Parliament.UK. “Obtaining a Divorce” (no date or author shown).  http://www.parliament.uk/about/living-heritage/transformingsociety/private-lives/relationships/overview/divorce   (Footnote 1)

Image and 1815 newspaper quotation found in Wikimedia Commons  (Image found here:  .http://upload.wikimedia.org/wikipedia/commons/thumb/3/33/Contemporary_wife_selling_print_georgian_scrapbook_1949.jpg/507px-Contemporary_wife_selling_print_georgian_scrapbook_1949.jpg )

Lauren Gilbert is a member of JASNA and lives in Florida with her husband.  Her first book, HEYERWOOD: A Novel, was published in 2011 and a second novel (working title A Rational Attachment) is expected to be released later this year.  Visit her website at www.lauren-gilbert.com.