Kelly Hager Chipping Away at Coverture the Matrimonial Causes Act of 1857

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Kelly Hager, Chipping Away at Coverture: The MatrimonialCauses Act of 1857

Figure 1: The Royal coat of arms of the United Kingdom of Great Britain and Northern Ireland.

[1]The Matrimonial Causes Act of 1857 legalized divorce in England, but a survey of eighteenth- and

nineteenth-century British novels suggest that husbands (and, very occasionally, wives) found ways to break theirwedded bonds long before divorce was codified into law. Rushworth divorces his wife Maria after she leaves himfor the flirtatious Henry Crawford in Jane Austens Mansfield Park (1814); Lord Lowborough finally divorces hiswife Annabella, very late in Anne Bronts The Tenant of Wildfell Hall (1848), after her continued infidelities; andBarnes Newcome divorces his wife Clara after she elopes with her first love in William Thackerays The Newcomes (1855). Divorce also figures in novels less familiar to 21 st-century readers, including JohnShebbeares The Marriage Act (1754), Mary Wollstonecraft and Gilbert Imlays The Emigrants (1793), LadyCharlotte Burys The Divorced (1837), Caroline Nortons Stuart of Dunleath (1851), Frances Trollopes The Life and Adventures of a Clever Woman (1854), and The Pride of Life (1854), by Lady June Jobson Scott.

The fictional evidence is supported by the historical record. In 1670, the first divorce was granted in England, byprivate Act of Parliament, to a Lord Roos, on the grounds of his wifes adultery. [2] Jane Addison was the firstwoman granted a divorce, in 1801 and again by private Act of Parliament, on the grounds of her husbandsincestuous adultery with her sister. According to Professor of Law Danaya Wright, between 1670 and 1857, 379Parliamentary divorces were requested and 324 were granted. Of those 379 requests, eight were by wives, andonly four of those were granted (212-13). [3] While divorce was, strictly speaking, illegal until 1857, the frequencywith which the law was set aside, thanks to private Acts of Parliament, and divorces thus obtained, made for aparadoxical state of affairs in which divorce was both illegal and yet more than occasionally granted byParliament. So what exactly did the Matrimonial Causes Act of 1857 do? What event do we point to when weassert that the Divorce Bill received the royal assent on 28 August 28 1857?

Before the Divorce Act of 1857, divorces could only be granted by Private Act of Parliament and weretremendously expensive; 1,000 was a conservative estimate, if no opposition was encountered. Further,Parliament could only be petitioned after the claimant had brought his (and I use the masculine pronoundeliberately) suit to the ecclesiastical court for a divorce a mensa et thoro (literally, a divorce from bed and board,a version of our legal separation)where he swore never to re-marryand then to the common law courts, wherehe brought a charge of adultery against his wifes lover. As the common law procedure suggests, the onlygrounds for divorce was adultery, and, as suggested by the case of Jane Addison, who divorced her husbandbecause of his incestuous adultery, the only kind of adultery perceived as a problem worthy of divorce was awifes adultery. Indeed, a wife would have to prove her husband had committed aggravated adulterythat is,adultery aggravated by bigamy, incest, bestiality, sodomy, desertion, cruelty, or rapein order to sue for divorceuntil well into the twentieth century. [4] As Wrights statistics indicate, until the passage of the Divorce Act in 1857,only three other women successfully petitioned Parliament for a Private Act to dissolve their marriages, and theyall did so on the grounds of adultery aggravated by bigamy or incest. But despite the expensive, involved processand the sexual double standard, there were men who could afford to divorce their adulterous wives (or who couldafford to prove that their wives were adulterous, which was not always the same thing), and there were fourwomen who could afford to divorce their adulterous and incestuous/bigamous husbands (and who were willing tosacrifice their reputations and their social status to do so).

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The Matrimonial Causes Act did away with the three-step process, creating a Court of Divorce and MatrimonialCauses, which could also rule on child custody cases, and establishing the grounds for divorce: a husband mustprove that his wife had committed adultery, while a wife must prove that her husband had committed aggravatedadultery. The act decreed that a divorced wifes property and future earnings would be her own; women legallydeclared to have been deserted by their husbands, as well as those who had obtained a judicial separation, could

also count on the protection of their earnings and property.

The legal historian O. R. McGregor argues that the main and only important purpose of the Act of 1857 was tomake the civil system of divorce established by the House of Lords in 1697 more widely available (18). [5] He is,in one sense, correct, since the grounds for divorce were not changed, nor was the sexual double standardabolished. Divorces were made slightly more affordable, given that only one court had to be appealed to, but themost significant of the bills clauses in this respect was never put into practice. That clause, which permitted thedivorce court to sit outside London, would have greatly reduced the cost, since a trip to London for the plaintiff andwitnesses, not to mention accommodations, would not be necessary. I would argue, however, that the act didmuch more than make divorce more widely available. First, it made the dissolution of marriage, strictlyspeaking, legal. It put divorce on the books. Because divorce had previously only been available by privatedispensation from Parliament, it was not a part of English law. In other words, every time Parliament granted a

divorce a vinculo matrimonii (literally, a divorce from the bonds of matrimony), it was setting the law asidemakingan exception to the lawrather than acting within its framework. So the Divorce and Matrimonial Causes Act didrepresent an advance that was importantly, if only, semantic. [6] Further, the act provided for the protection of thefuture earnings and property of divorced, deserted, and separated wives; it was thus the first piece of legislation toacknowledge that a wife, albeit a divorced, deserted, or separated wife, had the right to her own property and onlythe second time that Parliament had been confronted with the inequities of the common law doctrine ofcoverture. [7]

We can see more clearly the Acts significance in the story of how the divorce bill became law, a story thatreveals that, while the legalization of divorce was initially largely a procedural matter, it became intertwined withthe campaigns for womens rights that emerged at mid-century (in particular, the campaign for a marriedwomens property bill). What follows is a highly condensed version of that story. [8]

In 1850, the Prime Minister, Lord Russell, appointed a Royal Commission to evaluate the state of marriage anddivorce law. The ostensible reasons for establishing such a body were, as I have suggested, procedural in nature;at mid-century there was a great deal of concern about the fact that three different legal procedures werenecessary to obtain a divorce. Further, the enormous financial cost was of some concern, as was the fact that somuch of Parliaments time was taken up in hearing private bills for divorce. [9] These, then, were the concerns thatsupposedly gave rise to the Royal Commission, and they are neatly mirrored in the Commissions 1853 report,which, in turn, became the basis of the Divorce Bill of 1854. The Commissions three-volume reportrecommended no change in the law itself, but rather a reconstruction of the courts so that the action for divorce,formerly taking place in common law courts, ecclesiastical courts, and Parliament, could be streamlined into aone-court process.

The Divorce Bill of 1854 was introduced into the House of Lords by Lord Chancellor Cranworth on June 13. Thebill proposed to remove divorce a mensa et thoro from the ecclesiastical courts and divorce a vinculo matrimonii from Parliament, turning the former over to Chancery and the latter over to a new divorce court. In other words,the bill proposed that an unhappy spouse would go to Chancery (the court that dealt with wills and trusts) for aseparation and to divorce court for a divorce. The issue of cost was not debated, and the fact that the bill distinctlydid not address the inequity of one law for the rich and one for the poor, which was the case with both the currentdivorce process and its proposed revision, was not considered a problem. It probably goes without saying that thegender inequity of the current state of marriage law was never brought up in the 1854 debates. In fact, at the endof the first days debate on the bill, Cranworth accurately observed that the only objections which had beenmade to the Bill in the course of the discussion appeared to him to have reference to the nature of the tribunal towhich questions of matrimony and divorce were in future to be referred. [10] That is, the Lords were concernedabout the already bulging case load of Chancery (think of the awful inefficiency of that body as portrayed just oneyear earlier in Dickenss Bleak House ), about the fact that the new court created would not have jurisdiction overall matrimonial cases, and about the fact that this new system would quite probably still mean a petitioner had to

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appeal to more than one tribunal, but they seem not to have been at all concerned about the class inequity of thebill. Throughout the debate, Members of Parliament opposing the Divorce Bill insisted that the people had nodesire for the reforms proposed by the bill, and, specifically, that the poor were not asking for access to any sort ofcourt for divorce or separation. [11]

Cranworth withdrew the Divorce Bill less than a month later [12] only to reintroduce it in 1856 with the same basicpurposes as the initial bill. But between July of 1854, when he withdrew the bill, and May of 1856, when hereintroduced it, several things had occurred which radically altered the character of the debates that ensued overthe 1856 bill. Caroline Norton wrote and privately published a letter to Queen Victoria on Cranworths 1854 bill,pointing out the gender inequities of the bill, while also bemoaning the withdrawal of a piece of legislation that atleast purported to address an institution in such dire need of reform. Barbara Leigh Smith and a group ofproto-feminists who came to be known as the Langham Place Group banded together to work for marriedwomens property rights. The Law Amendment Society, a group of Whig lawyers organized in 1844, together withSmiths group, drafted a petition regarding the rights of married women to hold property and income in their ownnames; they presented this petition to Parliament two months before Cranworth reintroduced his divorce bill. Thispetition echoed Nortons pleas for the law to address the current state of marriage law and protect the wife fromits inequities (in particular, to protect the property of a wife separated from her husband). [13] The effect of these

almost simultaneous efforts was, as Lawrence Stone accurately notes, to convert the bill from a purelyadministrative reorganization of the courts to a significant change in the laws governing divorce (373). At thispoint, the debate over the bill takes on a decidedly proto-feminist character; as Mary Poovey points out, thepassage of this bill as the Matrimonial Causes Act of 1857 was the first major piece of British legislation to focusattention on the anomalous position of married women under the law (51). By delaying the bill for two years, thegovernment thus inadvertently committed itself to its second examination of the principle of coverture, andsubjects which were not at issue two years beforethe right of a woman to sue for divorce on the same groundsas a man, to own property, and to earn income in her own namebecame parts of the debate.

Specifically, the issues which sprang up around the 1856 divorce bill and transformed it from an organizationalmeasure to a proposal which threatened the gender bias implicit in the doctrine of coverture found their way intothe debate in the form of clauses to the bill to abolish the action for criminal conversation (long thought by many to

be an embarrassment to the country because the remedy for this tort was damages, paid to the injured spouse bythe adulterer), to establish equal grounds upon which men and women could sue for divorce, and to provide forthe protection of a legally separated wifes property. It is fair to say that while the divorce bill attempted tostreamline the law and only inadvertently provided some relief for wives and the lower classes in its establishmentof a cheaper one-court system and the protection it provided for the property of some wives, the MarriedWomens Property Bill explicitly sought to protect the property of all women. But the passage of the divorce billwas a victory of sorts, nevertheless. It did away with the messy, expensive, extra-legal, and time-consumingthree-court process, and it made divorce legal beyond the shadow of a doubt. After 28 August 1857, it could nolonger be argued, as opponents had held throughout the years of debate, that under the law of England, marriagewas indissoluble.

So exactly what legal event took place on 28 August 28 1857 when the Divorce and Matrimonial Causes Act

received the royal assent? Mary Poovey admits that the Act made significant contributions to legal reform, butshe maintains that it did not actually remedy the anomalies it set out to address (85). Dorothy Stetson, on theother hand, proclaims that it changed the official definition of responsibilities and status of women and men infamily law in England (44). Perhaps the best answer to this question can be found by turning to the legislatorsthat fought for and against this act, for, despite the unavoidable bias of their opinions, these men judged the Act interms of the prevailing sentiments of mid-Victorian England. Supporters of the new law tended to argue that it didnot represent a change in the law, while those opposed to the passage of the Act painted it as a radical departurefrom the theory and practice of British law. For instance, Lord Chancellor Cranworth reminded his peers that for200 years, the principle of the Bill had been in operation, while the Earl of Malmesbury found the proposed Bill tobe opposed to the existing law of the land, suggesting that a very significant piece of legislation was enactedwhen the Matrimonial Causes Bill was made law ( Hansards 146.212, 204). These two opposing views make itclear that while divorces had been granted by Private Act of Parliament for almost two hundred years (LordChancellor Cranworths point), until the passage of the 1857 Act, the British could at least pay lip service to theindissolubility of marriage (which is, I think, exactly what the Earl of Malmesbury was doing). The fact that they

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could no longer even pay lip service to the permanence of wedlock, along with the fact that Parliament had nowfor a second time been confronted with the cruel inequity of coverture, suggests that the passage of theMatrimonial Causes Act was an event of major significance, indeed a landmark in the history of family law andwomens rights.

Kelly Hager is Associate Professor of English and Womens & Gender Studies at Simmons College. She is theauthor of Dickens and the Rise of Divorce: The Failed-Marriage Plot and the Novel Tradition (Ashgate 2010) andis co-editing, with Talia Schaffer, a special issue of Victorian Review on Extending Families (Fall 2013).

HOW TO CITE THIS BRANCH ENTRY (MLA format)

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].

WORKS CITED

Ablow, Rachel. One Flesh, One Person, and the 1870 Married Womens Property Act. BRANCH: Britain,Representation and Nineteenth-Century History . Ed. Dino Franco Felluga. Extension of Romanticism and Victorianism on the Net . Web. 17 August 2012.

Hager, Kelly. Dickens and the Rise of Divorce: The Failed-Marriage Plot and the Novel Tradition . Aldershot:Ashgate, 2010. Print.

Hansards Parliamentary Debates . 3rd series. Vol. 143 (1854). Print.

. 3rd series. Vol. 145 (1856). Print.

. 3rd series. Vol. 146 (1857). Print.

Holcombe, Lee. Wives and Property: Reform of the Married Womens Property Law in Nineteenth-Century England . Toronto: U of Toronto P, 1983. Print.

Horstman, Allen. Victorian Divorce . London: Croom Helm, 1985. Print.

Kalsem, Kristin. In Contempt: Nineteenth-Century Women, Law, and Literature . Columbus: Ohio State UP, 2012.Print.

Luhmann, Niklas. Love as Passion: The Codification of Intimacy . 1982. Trans. Jeremy Gaines and Doris L. Jones.Stanford, CA: Stanford UP, 1998. Print.

McGregor, O. R. Divorce in England: A Centenary Study . Melbourne: William Heinemann, 1957. Print.

Norton, Caroline. A Letter to the Queen on Lord Chancellor Cranworths Marriage and Divorce Bill . Selected Writings of Caroline Norton . Ed. James O. Hoge and Jane Marcus. Delmar, NY: Scholars Facsimiles & Reprints,1978. Print.

Phegley, Jennifer. Courtship and Marriage in Victorian England . Santa Barbara, CA: Praeger, 2012. Print.

Phillips, Roderick. Putting Asunder: A History of Divorce in Western Society . New York: Cambridge UP, 1988.Print.

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Poovey, Mary. Uneven Developments: The Ideological Work of Gender in Mid-Victorian England . Chicago: U ofChicago P, 1988. Print.

Rappoport, Jill. Wives and Sons: Coverture, Primogeniture, and Married Womens Property. BRANCH: Britain,Representation and Nineteenth-Century History . Ed. Dino Franco Felluga. Extension of Romanticism and

Victorianism on the Net . Web. 17 August 2012.

Rubenhold, Hallie. Lady Worsleys Whim: An Eighteenth-Century Tale of Sex, Scandal and Divorce . London:Chatto & Windus, 2008. Print.

Shanley, Mary Lyndon. Feminism, Marriage, and the Law in Victorian England . Princeton, NJ: Princeton UP,1989. Print.

Stetson, Dorothy. A Womans Issue: The Politics of Family Law Reform in England . Westport, CT: GreenwoodPress, 1982. Print.

Stone, Lawrence. Road to Divorce: England, 15301987 . Oxford: Oxford UP, 1990. Print.

Summerscale, Kate. Mrs. Robinsons Disgrace: The Private Diary of a Victorian Lady . New York: Bloomsbury,2012. Print.

Wright, Danaya C. Well-Behaved Women Dont Make History: Rethinking English Family, Law, and History , 19Wis. Womens L.J. 211 2004), available at http://scholarship.law.ufl.edu/facultypub/128. Web. August 17, 2012.

ENDNOTES

[1] Sections of this essay first appeared in chapters 1 and 5 of Kelly Hager, Dickens and the Rise of Divorce: The Failed-Marriage Plot and the Novel Tradition .

[2] Danaya Wright notes that a Parliamentary return from 1857 placed the Roos divorce in 1670 and identifiedtwo earlier divorces, one in 1540 and one in 1551, the latter one having been repealed, but Alan Horstman,Lawrence Stone, and Roderick Phillips all list Lord Rooss 1670 divorce as the first to be granted in England (212n5).

[3] Fans of Kate Summerscales recent nonfiction account of a Victorian divorce trial, Mrs. Robinsons Disgrace: The Private Diary of a Victorian Lady , might be interested to read an eighteenth-century version of a similar story,Hallie Rubenholds Lady Worsleys Whim: An Eighteenth-Century Tale of Sex, Scandal and Divorce .

[4] Women would not be allowed to sue for divorce on the grounds of simple, as opposed to aggravated, adulteryuntil the passage of the Matrimonial Causes Act of 1923; both men and women would have to wait until 1937, withthe passage of the Matrimonial Causes Act of 1937, to sue for divorce on grounds other than adultery.

[5] McGregor cites 1697 as the year in which civil divorce was established because that was the year the Earl ofMacclesfield obtained his divorce, but I follow Alan Horstman and Lawrence Stone in their identification of 1670 asthe year in which Parliament first granted a divorce, to Lord Roos. McGregor makes no mention of Roos.

[6] To say a change is semantic is not, as Niklas Luhmann reminds us, to belittle it. Luhmann argues thatsemantics describe how [motives] can exist and how they are to be presented and comprehended. Motives arethemselves a product of the evolution of generalized symbolic communicative media, i.e. an artefact ofsocio-cultural evolution (39).

[7] As Kristin Kalsem points out in In Contempt: Nineteenth-Century Women, Law, and Literature , the first half of

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the reign of Queen Victoria witnessed Caroline Norton agitating for a mothers right to custody of her children andmaking minor inroads into a fathers absolute rights with passage of The Infant Custody Act of 1839 (2). This Actallowed a separated wife to petition the court for custody of her children under seven years of age. For relatedBRANCH articles on later attacks on coverture, see Jill Rappoports Wives and Sons: Coverture, Primogeniture,and Married Womens Property and Rachel Ablows One Flesh, One Person, and the 1870 Married

Womens Property Act.

[8] For an excellent and incisive account of the factors which worked together to turn the divorce bill into a piece oflegislation with significant ramifications for The Woman Question, see Mary Poovey, Covered but Not Bound:Caroline Norton and the 1857 Matrimonial Causes Act in Uneven Developments . See also Lawrence Stone,Road to Divorce ; Lee Holcombe, Wives and Property ; Mary Lyndon Shanley, Feminism, Marriage and the Law in Victorian England ; and Dorothy Stetson, A Womans Issue: The Politics of Family Law Reform in England .

[9] It is easy to see how lawmakers assumed there was a divorce epidemic, writes Wright. Nearly four times asmany divorces occurred in the last fifty years of the period (1800-1850), than in the first fifty years (1670-1720)(212 n.6).

[10] Hansards Parliamentary Debates , 3rd series, vol. 143; 1854, 25. All further references to the ParliamentaryDebates will appear in the text by volume and column number (e.g., Hansard 134.25).

[11] It is thus well worth noting that, as Jennifer Phegley points out, in the decade following the Divorce Act,members of the working class filed 23 percent to 31 percent of divorce cases, and members of the lower middleclass brought 19 percent to 23 percent of cases, suggesting that access to legal divorce was something in whichVictorians of all classes were very much interested (21-3).

[12] He withdrew the bill only so that he might combine it with a bill to remove the probate of wills from theecclesiastical courts (the Testamentary Jurisdiction Bill). The brief discussion in Parliament following his proposalto withdraw the bill had to do with the business to be removed from the ecclesiastical courts and assigned toChancery. At this point, it seemed the ecclesiastical courts were in danger of losing all their business and that

reforming the law of divorce was not one of Parliaments chief concerns. Cranworth seems to have felt that hisdivorce bill had been seriously weakened by the withdrawal of the Testamentary Jurisdiction Bill (which hecombined with the divorce bill because both dealt with the business of the ecclesiastical courts). These admittedlyminor details about the 1854 bill reveal how very procedural it was in nature.

[13] This petition became the basis for the first Married Womens Property Bill, introduced in the House ofCommons in May of 1857; a similar bill had been introduced in the House of Lords in February of 1857. That billwas approved on the second reading but then stalled because it came into conflict with the passage of the divorcebill. While later versions of the divorce bill contained provisions for the protection of the property and earnings ofdeserted and legally separated wives, the Married Womens Property Bills sought to extend this protection to allwives, a move which many supporters of the divorce bill viewed as unnecessarily competitive, not to mentiondisturbing in its ramifications. Cranworth feared the Married Womens Property Bill would have the effect of

entirely altering the social relations of husband and wife, and indeed, the 1857 bill basically proposed theabolition of coverture ( Hansards 145: 493-4).

The text of this article is published under a Creative Commons Attribution license (CC BY 3.0). For moreinformation, go here: http://creativecommons.org/licenses/by/3.0/ . See above for "HOW TO CITE THISBRANCH ENTRY."

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Kelly Hager Chipping Away at Coverture the Matrimonial Causes Act of 1857