Georgian & Regency Divorce

Before the Matrimonial Causes Act of 1857, divorce was governed by the ecclesiastical Court of Arches and the canon law of the Church of England. As such, it was not administered by the barristers who practised in the common law courts but by the "advocates" and "proctors" who practiced civil law (i.e., canon law), adding to the obscurity of the proceedings. (The image at right is of Doctors' Commons, the place where the practitioners of canon law lived and worked. (As always, click on an image to enlarge it.))

Very few separations and divorces were granted. Between 1765 and 1857, there were only 276 divorces. Between 1697 (the first divorce bill) and 1857, only four divorces were granted to women, the first in 1801.

Divorce was de facto restricted restricted to the very wealthy because it demanded either a complex annulment process or a private bill, either at great cost. The latter entailed sometimes lengthy debates about a couple's intimate relationship in public in the House of Commons.

The upper class accounted for slightly more than half of the divorces from 1803 to 1827. The rest were middle class.

Canon law permitted a separation, called the divortium a mensa et thoro (separation from bed and board), for certain specified causes. The causes were life-threatening cruelty and adultery by the husband, or adultery by the wife.

A divortium a mensa et thoro was a legal separation, permitting the husband and wife to reside separately. It also ended the husband's financial responsibility for his wife. Neither party was permitted to remarry.

If a divortium a mensa et thoro was deemed insufficient, there were two choices: a suit of nullity or a divorce. Nullity challenged the legal validity of the marriage itself. If a suit of nullity was requested, the cause of nullity had to be proved. The grounds for nullifying a marriage included fraud, duress preventing legal consent to the marriage, and sexual impotence of one spouse at the time the marriage was contracted that was unknown to the other spouse. If the grounds were impotence, physical examinations were required of both husband and wife, allowing sufficient time thereafter for possible conception to occur---usually two years. If the ecclesiastical court determined that sufficient cause existed to nullify a marriage, the court issued a decree of nullity. Such a decree declared, in effect, that the man and woman never were married, and (during our eras) it absolved them from all obligations to each other.

If divorce was the means chosen to end a marriage, there were five causes: adultery, impotency (after the marriage was contracted), cruelty, infidelity, and entering religion (e.g., if one's spouse became a nun or monk). Ostensibly, divorce centered on the man's need for a legitimate heir, so a man had only to prove simple adultery by this wife, whereas a woman had to prove adultery plus aggravating offenses by her husband. The most common (relatively speaking, since there were so few divorces granted to women) aggravating offenses were physical cruelty, bigamy, and incest. Incest---adultery with the wife's sister in the couple's home---was the cause for two early 19th-century divorces granted to women.

There were three steps in the procedure for divorce. First, an individual obtained a divorce from one of the Consistory Courts. (There was one in each diocese, run by a chancellor and staff appointed by the bishop.) Appeals were made to the Court of the Arches in London.

Next, the aggrieved individual (almost always the husband) sought a criminal conviction in the civil court, charging the other man with "criminal conversation" and seeking damages. (The offence of criminal conversation (crim. con.), a euphemism for adultery, was tried as a form of trespass or damage to property, a wife being deemed part of a man's property.) Readers familiar with the time period will not be surprised to learn that the wife, whose reputation was the crux of the case, was herself not considered a principal in it. She had no legal identity apart from her husband: she could neither attend nor testify.

The crim. con. case provided a goodly amount of gossip for people from all walks of life. If the aggrieved individual proved his case, he could take the third step.

The final step was to bring a Private Act (or Bill) of Divorcement before Parliament. The passage of such a bill resulted in a divorce a vinculo matrimonii, which permitted both parties to remarry---which the ecclesiastical divortium a mensa et thoro did not. The primary concern at this point in the process was untangling the original settlements made at the time of the marriage.

Divorce was a long, drawn-out process---and a costly one. Only three or four cases a year came before Parliament because so few could afford this final and extremely expensive step.

Next post: a scandalous Georgian divorce.

Susannah

 P.S. Since much of this post came directly from my lecture notes for Jane Austen's England (last spring's honors seminar)---Lectures 21 and 22, to be exact---I have a list of the references that I used. I am including the list, for those of you who might want more information.

References:
Bailey, Joanne. Unquiet Lives: Marriage and Marriage Breakdown in England 1660-1800. Cambridge: Cambridge University Press, 2003.
Horstman, Allen. Victorian Divorce. New York: St. Martin's Press, 1985. (Ignore the title; this book covers divorce throughout the 19th century.)
Perkin, Jane. Women and Marriage in Nineteenth-Century England. London: Routledge, 1989.

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.