Kelly Hager, “Chipping Away at Coverture: The Matrimonial Causes Act of 1857”

[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 their wedded bonds long before divorce was codified into law. Rushworth divorces his wife Maria after she leaves him for the flirtatious Henry Crawford in Jane Austen’s Mansfield Park (1814); Lord Lowborough finally divorces his wife Annabella, very late in Anne Brontë’s The Tenant of Wildfell Hall (1848), after her continued infidelities; and Barnes Newcome divorces his wife Clara after she elopes with her first love in William Thackeray’s The Newcomes (1855). Divorce also figures in novels less familiar to 21^st-century readers, including John Shebbeare’s The Marriage Act (1754), Mary Wollstonecraft and Gilbert Imlay’s The Emigrants (1793), Lady Charlotte Bury’s The Divorced (1837), Caroline Norton’s Stuart of Dunleath (1851), Frances Trollope’s 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, by private Act of Parliament, to a Lord Roos, on the grounds of his wife’s adultery.[2] Jane Addison was the first woman granted a divorce, in 1801 and again by private Act of Parliament, on the grounds of her husband’s incestuous adultery with her sister. According to Professor of Law Danaya Wright, “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” (212-13).[3] While divorce was, strictly speaking, illegal until 1857, the frequency with which the law was set aside, thanks to private Acts of Parliament, and divorces thus obtained, made for a paradoxical state of affairs in which divorce was both illegal and yet more than occasionally granted by Parliament. So what exactly did the Matrimonial Causes Act of 1857 do? What event do we point to when we assert 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 were tremendously 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 pronoun deliberately) 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-marry—and then to the common law courts, where he brought a charge of adultery against his wife’s lover. As the common law procedure suggests, the only grounds for divorce was adultery, and, as suggested by the case of Jane Addison, who divorced her husband because of his incestuous adultery, the only kind of adultery perceived as a problem worthy of divorce was a wife’s adultery. Indeed, a wife would have to prove her husband had committed aggravated adultery—that is, adultery “aggravated” by bigamy, incest, bestiality, sodomy, desertion, cruelty, or rape—in order to sue for divorce until well into the twentieth century.[4] As Wright’s 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 they all did so on the grounds of adultery aggravated by bigamy or incest. But despite the expensive, involved process and the sexual double standard, there were men who could afford to divorce their adulterous wives (or who could afford to “prove” that their wives were adulterous, which was not always the same thing), and there were four women who could afford to divorce their adulterous and incestuous/bigamous husbands (and who were willing to sacrifice their reputations and their social status to do so).

The Matrimonial Causes Act did away with the three-step process, creating a Court of Divorce and Matrimonial Causes, which could also rule on child custody cases, and establishing the grounds for divorce: a husband must prove that his wife had committed adultery, while a wife must prove that her husband had committed aggravated adultery. The act decreed that a divorced wife’s property and future earnings would be her own; women legally declared 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 to make 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 standard abolished. Divorces were made slightly more affordable, given that only one court had to be appealed to, but the most significant of the bill’s clauses in this respect was never put into practice. That clause, which permitted the divorce court to sit outside London, would have greatly reduced the cost, since a trip to London for the plaintiff and witnesses, not to mention accommodations, would not be necessary. I would argue, however, that the act did much more than make divorce “more widely available.” First, it made the dissolution of marriage, strictly speaking, legal. It put divorce on the books. Because divorce had previously only been available by private dispensation 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 aside—making an exception to the law—rather than acting within its framework. So the Divorce and Matrimonial Causes Act did represent an advance that was importantly, if only, semantic.[6] Further, the act provided for the protection of the future earnings and property of divorced, deserted, and separated wives; it was thus the first piece of legislation to acknowledge that a wife, albeit a divorced, deserted, or separated wife, had the right to her own property and only the second time that Parliament had been confronted with the inequities of the common law doctrine of coverture.[7]

We can see more clearly the Act’s significance in the story of how the divorce bill became law, a story that reveals that, while the legalization of divorce was initially largely a procedural matter, it became intertwined with the campaigns for women’s rights that emerged at mid-century (in particular, the campaign for a married women’s 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 and divorce 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 were necessary to obtain a divorce. Further, the enormous financial cost was of some concern, as was the fact that so much of Parliament’s time was taken up in hearing private bills for divorce.[9] These, then, were the concerns that supposedly gave rise to the Royal Commission, and they are neatly mirrored in the Commission’s 1853 report, which, in turn, became the basis of the Divorce Bill of 1854. The Commission’s three-volume report recommended 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 a one-court process.

The Divorce Bill of 1854 was introduced into the House of Lords by Lord Chancellor Cranworth on June 13. The bill 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 a separation and to divorce court for a divorce. The issue of cost was not debated, and the fact that the bill distinctly did not address the inequity of one law for the rich and one for the poor, which was the case with both the current divorce process and its proposed revision, was not considered a problem. It probably goes without saying that the gender inequity of the current state of marriage law was never brought up in the 1854 debates. In fact, at the end of the first day’s debate on the bill, Cranworth accurately observed that “the only objections which had been made to the Bill in the course of the discussion appeared to him to have reference to the nature of the tribunal to which questions of matrimony and divorce were in future to be referred.”[10] That is, the Lords were concerned about the already bulging case load of Chancery (think of the awful inefficiency of that body as portrayed just one year earlier in Dickens’s Bleak House), about the fact that the new court created would not have jurisdiction over all matrimonial cases, and about the fact that this new system would quite probably still mean a petitioner had to appeal to more than one tribunal, but they seem not to have been at all concerned about the class inequity of the bill. Throughout the debate, Members of Parliament opposing the Divorce Bill insisted that “the people” had no desire for the reforms proposed by the bill, and, specifically, that the poor were not asking for access to any sort of court 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 basic purposes as the initial bill. But between July of 1854, when he withdrew the bill, and May of 1856, when he reintroduced it, several things had occurred which radically altered the character of the debates that ensued over the 1856 bill. Caroline Norton wrote and privately published a letter to Queen Victoria on Cranworth’s 1854 bill, pointing out the gender inequities of the bill, while also bemoaning the withdrawal of a piece of legislation that at least purported to address an institution in such dire need of reform. Barbara Leigh Smith and a group of proto-feminists who came to be known as the Langham Place Group banded together to work for married women’s property rights. The Law Amendment Society, a group of Whig lawyers organized in 1844, together with Smith’s group, drafted a petition regarding the rights of married women to hold property and income in their own names; they presented this petition to Parliament two months before Cranworth reintroduced his divorce bill. This petition echoed Norton’s pleas for the law to address the current state of marriage law and protect the wife from its 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 purely administrative reorganization of the courts to a significant change in the laws governing divorce” (373). At this point, the debate over the bill takes on a decidedly proto-feminist character; as Mary Poovey points out, the passage of this bill as the Matrimonial Causes Act of 1857 “was the first major piece of British legislation to focus attention on the anomalous position of married women under the law” (51). By delaying the bill for two years, the government thus inadvertently committed itself to its second examination of the principle of coverture, and subjects which were not at issue two years before—the right of a woman to sue for divorce on the same grounds as a man, to own property, and to earn income in her own name—became parts of the debate.

Specifically, the issues which sprang up around the 1856 divorce bill and transformed it from an organizational measure to a proposal which threatened the gender bias implicit in the doctrine of coverture found their way into the 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 by the adulterer), to establish equal grounds upon which men and women could sue for divorce, and to provide for the protection of a legally separated wife’s property. It is fair to say that while the divorce bill attempted to streamline the law and only inadvertently provided some relief for wives and the lower classes in its establishment of a cheaper one-court system and the protection it provided for the property of some wives, the Married Women’s Property Bill explicitly sought to protect the property of all women. But the passage of the divorce bill was a victory of sorts, nevertheless. It did away with the messy, expensive, extra-legal, and time-consuming three-court process, and it made divorce legal beyond the shadow of a doubt. After 28 August 1857, it could no longer be argued, as opponents had held throughout the years of debate, that under the law of England, marriage was 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,” but she maintains that “it did not actually remedy the anomalies it set out to address” (85). Dorothy Stetson, on the other hand, proclaims that it “changed the official definition of responsibilities and status of women and men in family law in England” (44). Perhaps the best answer to this question can be found by turning to the legislators that fought for and against this act, for, despite the unavoidable bias of their opinions, these men judged the Act in terms of the prevailing sentiments of mid-Victorian England. Supporters of the new law tended to argue that it did not represent a change in the law, while those opposed to the passage of the Act painted it as a radical departure from the theory and practice of British law. For instance, Lord Chancellor Cranworth reminded his peers that “for 200 years, the principle of the Bill had been in operation,” while the Earl of Malmesbury found the proposed Bill to be “opposed to the existing law of the land,” suggesting that a very significant piece of legislation was enacted when the Matrimonial Causes Bill was made law (Hansard’s 146.212, 204). These two opposing views make it clear that while divorces had been granted by Private Act of Parliament for almost two hundred years (Lord Chancellor Cranworth’s point), until the passage of the 1857 Act, the British could at least pay lip service to the indissolubility of marriage (which is, I think, exactly what the Earl of Malmesbury was doing). The fact that they could no longer even pay lip service to the permanence of wedlock, along with the fact that Parliament had now for a second time been confronted with the cruel inequity of coverture, suggests that the passage of the Matrimonial Causes Act was an event of major significance, indeed a landmark in the history of family law and women’s rights.

published November 2012

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