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.

The Price of a Broken Heart

by Maria Grace

Even after the decline of arranged marriages after 1780, marriage still remained largely a business transaction. Even the promise to marry was considered an enforceable contract, with a breach of promise suit a possible consequence of a broken engagement. Infringement on another man’s marriage ‘property’ could result in even more spectacular "crim con" cases and the award of greater damages.

Breach of Promise Suits

As early as the fifteenth century, English ecclesiastical courts equated a promise to marry with a legal marriage. By the 1600’s, this became part of common law; a contract claim one party could make upon another in civil court suits. (And you thought this was just the stuff of modern daytime television!)

To succeed in such a suit, the plaintiff, usually a woman, had to prove a promise to marry (or in some cases, the clear intention to offer such a promise), that the defendant breached the promise (or the implied promise to promise), and that the plaintiff suffered injury due to the broken promise (or failure to make the implied promise. Don’t think about it too hard, it’ll make your head hurt.)

Breach of Promise claims

A breach of promise suit required a valid betrothal. Promises to marry when both parties were below the age of consent were not valid. Similarly, promises to marry made when one was already married (as in I’ll marry you if/when my current spouse dies—how romantic!) or between those who could not legally marry were not enforceable.

If significant and material facts were discovered that could have influenced the agreement, then betrothal could be dissolved without penalty. So, issues like misrepresentation of one’s financial state, character, mental or physical capacity presented valid reasons to end an engagement.

If a betrothal was valid, a breach of promise claim could be presented in court. 

Reasoning

Why were such claims filed when it seems like it would be far easier, less painful and less embarrassing for a couple to simply go their separate ways? When a promise to marry was broken, the rejected party, usually female, suffered both social and economic losses.

Socially, an engaged couple was expected to act like an engaged couple. Though it seems unfair in modern eyes, the acceptable behaviors she may have shared with her betrothed, would leave her reputation damaged if he left her. Moreover, though premarital sex was officially frowned upon, it was known that a woman was much more likely to give up her virginity under a promise to marry. But if that promise was not kept, her future search for a husband would be significantly hampered for having broken the code of maidenly modesty.

The loss of reputation translated to serious economic losses, since middle and upper class women did not work outside the home and required a household supported by a husband’s wealth. A woman with a tarnished reputation was unlikely to marry well. 

Damage Awards

Perhaps as a result, a woman was far more likely to win a breach of promise claim than lose one. Middle-class ladies were generally able to obtain larger damage awards than working women, though cases varied greatly. About half of women winning damages obtained £50 - £200. (For reference, middle class family of four could live comfortably on £250 a year.)

While these awards could indeed offer assistance to wronged plaintiffs, the system was also ripe for abuse. Jurors were often unduly sympathetic toward jilted women, especially when they were attractive or portrayed as particularly virtuous. Damage awards could easily be swayed by such sympathies, making false claims very tempting. If all this sounds much like modern reality television, criminal conversation cases resemble it even more.

Criminal Conversation

During the late Georgian era, in England, sleeping with another man’s wife was not a legal offense. (Interestingly, it was in Scotland, though.) However a little detail like that could not stop cuckolded husbands from taking their wives’ adulterous lovers to court.

Since dueling over offenses of honor was increasingly frowned upon, gentlemen sought reparations in civil court. Civil laws concerning trespassing also addressed issues of ‘wounding another man’s property’. Since a wife was by law effectively chattel, a husband suffered damage to her chastity when adultery occurred, 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. (Check the link below 'Show Me the Money' for more on a woman's legal position in marriage.)

The euphemistic name for the offense was Criminal Conversation (Crim Con.)

If a husband had evidence of adultery, he could launch a civil crim con case against the other man. Thus he might vindicate his own honor and destroy his rivals character and finances, all without the unsavory shedding of blood.

Interestingly, the wife was not a party to the suit, the matter was strictly between the men. (Remember the whole being property thing? That.)

Criminal Conversation trials

The last decade of the 18th century was by far the heyday for the crim con trial. Lord Chief Justice Lloyd Kenyon declared that the country was in the grip of a "crisis of morality"(Fullerton, 2004). Only after the average award settlements dropped in the early 19th century did the number of claims begin to decline. (Wonder if there’s a connection…)

In any case, crim con trials tended to be colorful, highly publicized events at the Court of the King's Bench, in a corner of Westminster Hall. These trials were open to the general public. And for those not fortunate enough to be able to attend in person, most book sellers carried newspaper, pamphlets, transcripts and ‘true’ exposés documenting all the sexual misadventures of high society.

Lawyers on both sides of the case played up the drama as much for the public notoriety as for the effect on the court’s decisions. They called servants, especially young pretty ones, to deliver testimony for both the plaintiff and the defense. While servants could be (mostly) excused for presenting salacious tales in similar language, the barristers were gentlemen and adopted notable euphemistic and flowery language to express the necessary elements with decency and taste. Some said it became something of an art form.

With so much at stake, both in terms of finances and reputations, truth and accuracy fell to the need to convince jurors.

The defendant, if he could not deny that he had seduced the plaintiff's wife, was obliged to present the object of his attentions as a low, debauched, corrupt woman who was worthless to the world let alone her sorry husband. The plaintiff, in order to secure a high payout, had to present his marriage as an unending festival of joyous love and his unfaithful wife as the best and most innocent woman in the world before the wicked seducer got his grubby hands on her. (Wilson, 2007). As a rule, these trials progressed quickly and once damages were assessed, they were enforceable like any other debt.

Damage Awards

In deciding damages, the jury had several factors to consider. The rank and fortune of the parties helped determine the loss the husband had suffered, effectively setting a cash value of the wife before her seduction. (As if the dowry and marriage settlements didn't do enough of that.) Juries also weighed the length of the marriage and the affair, whether the two men were friends before the seduction, and whether or not said seduction had taken place in the marital bed (an ever greater outrage and offense.) Often, juries wanted to insure that the well-heeled rake was sufficiently punished to deter more of his kind from following in his footsteps.

Juries often awarded only half the damages requested, so indignant gentlemen just increased the amount they asked for, often sums totaling over £15,000. Occasional cases were settled for up to £20,000 but awards of at least £1,500 were far more common.

Ironically, it was not unusual for a married couple to remain married after the conclusion of a crim con case. However, such a case was a preliminary step in divorce proceedings.

Divorce though required an act of Parliament. Seriously.

Reference

Fullerton, Susannah - Jane Austen & Crime JASA Press (2004)

Wilson, Ben - The Making of Victorian Values, Decency & Dissent in Britain: 1789-1837. The Penguin Press (2007)

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
Show me the Money: the Business of Courtship

References

~~~~~~~~~~~~

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