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.

Show Me the Money: Marriage Settlements in the Regency Era

by Maria Grace

Even though the attitudes toward arranged marriages changed in the Regency era, and young people were, by and large, able to choose their own mates, marriage still remained largely a business proposition. Perhaps more significantly, a woman’s legal position changed dramatically at marriage, forever impacting her existence as a legal individual and making attendance to legal matters and paperwork essential for her future.

Women's Legal Position in Regency times

In 1765, William Blackstone presented a common man’s language interpretation of English law, which sets out the law’s approach to women’s legal existence and rights in marriage. These remained largely unchanged until the Married Women’s Property Act of 1884. Blackstone said:

By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband… and her condition during her marriage is called her coverture.
… For this reason, a man cannot grant anything to his wife, or enter into covenant with her: for the grant would be to suppose her separate existence; and to covenant with her, would be only to covenant with himself: … a husband may also bequeath any thing to his wife by will; for that cannot take effect till the coverture is determined by his death.
… the chief legal effects of marriage during the coverture; upon which we may observe, that even the disabilities which the wife lies under are for the most part intended for her protection and benefit: so great a favourite is the female sex of the laws of England.

Effectively this common law doctrine rendered married women unable to sign Bills of exchange, make contracts, buy property, write a will, act as a business partner, or even own her own earnings or have custody of her children. I’m not sure the law favored women the way Blackstone thought it did.

Ironically, single women and widows were able to act with much greater independence. In many cases widowhood gave a woman the greatest legal freedoms, which many wealthy widows were loath to give up by remarrying.

It was not until the Married Women’s Property Act of 1884 that married women the same legal rights as unmarried women.

Marriage Settlements

In most cases, women did not bring a great deal of property or money into a marriage (of course, neither did the husband). When there was substantial property involved, legal documents called marriage settlements or articles were required by one or both families.

Lawyers, one representing each family worked together to draw up a legal document know as a marriage settlement or marriage articles. Only about one tenth of marriages had them as the fee for such documents was around £100. (For reference, a family of four could live a comfortable middle class lifestyle on £250-300 a year.)

A marriage settlement was a prenuptial agreement (bet you thought that was a modern invention!) that established the financial terms of the marriage. The terms included stipulations about what was to be done with the wife’s dowry, what her discretionary income would be (known as ‘pin money’), what her income would if she became a widow, and what (total) amount would go to her children from the monies she brought into the marriage. The timing of these payments was also often specified.

Parents could also ‘settle’ money on the couple in the marriage articles. Jane Austen references this in Lydia’s settlement with Wickham in which Mr. Bennet is to allow her £100 per year during his lifetime.

A Woman’s Dowry

Though Jane Austen’s Mr. Bennet referred to dowries as bribes to worthless young men to marry his daughters, dowries were more commonly considered a means by which a responsible family compensated a husband for their daughter’s lifelong upkeep. Thus, a woman’s birth family was responsible for seeing that she could maintain the lifestyle to which she was accustomed once she was married.

Dowries (or more commonly the interest earned off a dowry) provided a woman’s lifetime spending money, her income if she became a widow, and money for her children at the death of one or both parents. Settlements would specify a total amount of money set aside for daughter’s dowries. The more daughters a family had, the more ways the sum would have to be divided. The division of the money was generally not specified, so it did not have to be divided evenly amongst the daughters. A father might add to the sum during his lifetime, but if not stipulated in the settlement, it was not required.

There was no guarantee that a woman’s family would have the cash on hand to pay a dowry on marriage. Often time, that sum was tied up in estate capital or investments. The family might have to take out a mortgage to pay the dowry, or a down payment on it, with the final portion due from the estate at the father’s death.

To replenish the loss of capital, the heir of the estate needed to marry a bride with her own fortune. Marrying a woman without sufficient capital could harm the financial position of the family estate.

Pin Money

Pin money, a woman’s disposable income, was stipulated in the marriage settlement. It represented money she could spend without answering to her husband. Since common law only stipulated that a man had to provide his wife’s ‘necessities’, pin money could supply the ‘luxuries’ that might be required to live the life style to which her family accustomed her.

The concept makes a great deal of sense, but since only a small minority of women enjoyed marriage settlements, most probably did not enjoy the luxury of their own private allowance to be spent as they wished.

Jointure

Common law did not allow for joint property ownership as we know it today. Upon a husband’s death, his estate and other property did not automatically become his wife’s. Typically the estate would be settled upon his heir, the widow would only receive what was willed her by the husband and what was set aside in her jointure. If a man left his wife property, it might be marked with the stipulation that it would revert to his heir or another designate if she remarried.

A jointure was the typical means of provision for a man’s widow, usually anchored on the amount that a woman brought into a marriage. Generally it was an annuity equal to one tenth of a woman’s dowry. The annuity would be payable by the heir of a man’s estate until the woman’s death upon which the principle would descend to her children. The ratio of jointure to dowry was established by the idea that the average wife would outlive her husband by about ten years. Thus, she would most likely receive back the amount she brought into the marriage over the duration of her widowhood.

Marriage Settlements to the Children

Marriage settlements also stipulated provisions for a woman’s children. Special provisions for children from a prior marriage would be included to insure that they received portions from their father’s property if it was in their mother’s hands at the time of her remarriage. If a man were widowed, these same provisions protected a first wife’s children from losing their mother’s fortune to a subsequent wife’s machinations, though it might also limit what a father could pass down to children from subsequent wives. This was the salient plot point for Jane Austen’s Sense and Sensibility.

The monies a woman brought into the marriage through her dowry and any other settlements on her, would go to her children, both sons and daughters, upon her death. Additional funds could be settled on the children from the father’s estate. The marriage articles would stipulate the amounts. Typically, only the total amounts would be set forth in the settlement, not the division among the children. This made sense given there was no way to know ahead of time how many children of which gender would be born. One consequence, though, was that a parent might threaten to readjust the division of the funds in order to control the behavior of a child set on thwarting his or her parent’s wishes.

While all these documents and legal requirements make for great plot points in fiction, few actually obtained them. These matters were mainly the purview of the landed and wealthy who made up the top ten percent or so of the population. Most women would have been happy with a dowry of a few hundred pounds; most children did not inherit vast sums or property from their parents; and most widows had to rely on their children and other family for support.

Find previous installments 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

References

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

Dr Amy Erickson, Women and property in early modern England (1993)

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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, follow on Twitter or email