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The Law of Divorce

Page history last edited by PBworks 11 years, 8 months ago

 

“The Law of Divorce.” London Times. 23 May 1853: 5

 

 

 

 

 

 Notes on the Text

 

Divorce mensâ et thoro: was a divorce “from bed and board,” and was granted by the ecclesiastical courts, but involved parties could not get remarried. This form of "divorce" is rougly equivalent to modern day seperation.

 

Divorce à vinculo matrimonii: was a divorce "from the bonds of marriage" and could only be granted by parliment. If this form of divorce was obtained, both parties could legally remarry.

 

 

 

 

Commentary on the Text

 

 

 

This document is an article that was published in The London Times on March 23, 1853.  It summarizes the main conclusions of the Royal Commission on Divorce and Matrimonial Causes into twenty-one points.  The Royal Commission was established in 1850 and was chaired by Lord Campbell (Stone 396).  The main reason for its taking place was to revise the law of divorce as it stood at the time.  Some attendees, such as Lord Cranworth, were content with the law as it was and resisted change, saying “the adultery of the wife might be the means of palming spurious offspring upon the husband while the adultery of the husband could have no such affect with regard to the wife” (qtd. in Perkin 24).  Others, such as Lord Lyndhurst, were activists for women, and argued that the current divorce laws perpetuated “the trite, but not altogether unjust observation, that men made the laws and women were the victims” (qtd. in Savage 17).  In the nineteenth century, it was significantly more difficult for women to be granted divorce than men.

At the time this article was published, divorce was divided into two types: à vinculo matrimonii and à mensâ et thoro.  À vinculo matrimonii, meaning “the bonds of marriage,” was a divorce that was recognized by the church and by parliament, and allowed the involved parties to remarry (Shanley 36).  Only parliament could grant this type of divorce before the Matrimonial Causes Act of 1857 (Stone 46).  À mensâ et thoro was a divorce “from bed and board,” and was granted by the church, but involved parties could not get remarried within the eyes of the church (Perkin 22).  This type of divorce is equivalent to a modern day separation.

According to the 1853 article in The London Times, the Royal Commission on Divorce and Matrimonial Causes was in favor of maintaining a distinction between à vinculo matrimonii and à mensâ et thoro.  While the commission did not propose a change in the law concerning divorce and separation, they did recommend a restructuring of the court system.   According to Stone, “the prime objective was to destroy the fifty local ecclesiastical courts by transferring to two new secular courts virtually all their non-clerical business, that is the probative wills and matrimonial affairs” (Stone 369).  The ecclesiastical courts had jurisdiction over religious matters, including marriage and divorce à mensâ et thoro, until the Matrimonial Causes Act of 1857.

The Matrimonial Causes Act of 1857 implemented many, but not all, of the suggestions that were stated in the article in The London Times on the Royal Commission on Divorce and Matrimonial Causes.  Jurisdiction of matrimonial acts and divorce was taken out of the hands of the ecclesiastical courts and given to the newly created Court for Divorce and Matrimonial Causes.  Contrary to the Commission’s suggestion, the distinction between à vinculo matrimonii and à mensâ et thoro was not maintained, and à mensâ et thoro was abolished and replaced with judicial separation, which could be granted by the Court for Divorce and Matrimonial Causes (McGregor 17-18).  In the article in The London Times, divorces à vinculo matrimonii were suggested only to be allowed in cases of “adultery, and adultery only,” in the case of men seeking divorce, but that the wife could apply for divorce à vinculo matrimonii in cases of adultery in addition to “aggravated enormity, such as incest or bigamy” (“The Law of Divorce”).  The Matrimonial Causes Act of 1857 also included aggravation of desertion, cruelty, rape, sodomy, and bestiality in addition to these suggestions (Perkin 303).  This extended the influence of the double standard between genders, which made à vinculo matrimonii divorce easier for men to obtain.

The double standard in divorce law and the controversy surrounding divorce law reform reveal the complexity of gender relations and gender inequality in nineteenth century England.  Even though the Royal Commission on Divorce and Matrimonial Causes was held to address some of these gender inequalities in addition to abolishing the jurisdiction the ecclesiastical courts on the matter of marriage and divorce, many of the double standards remained intact four years later when the Matrimonial Causes Act of 1857 was passed.  Women were not granted equal rights in divorce until a bill was passed in 1923, shortly after women were granted the right to vote (Stone 395-396).

 

Commentary by K.S.

March 16, 2008

"The Law of Divorce" certainly revealed that the double standard was very much alive in society even within marriage.  Clearly men had an easier time obtaining a divorce than women.  I think that it is interesting that people could obtain two kinds of divorce, though one was more of a separation and prevented remarriage.  It seems that two kinds of divorce were necessary to ensure that men maintained authority, their rights were fully protected, and women received as little as possible from a divorce like money, property, and/or children.  Furthermore, I think that it is interesting the church was still very much a judicial authority, and that the reformers wanted to lessen its prominence in the divorce process.  The article, thus, hints at a deeper conflict and divide between the government and the church.  Nevertheless, I would not have wanted to live during a time when divorce would have been nearly impossible.  While these suggestions do indicate some willingness to change, they are too few and too limited.  For example, it takes another four years for women to obtain a divorce on grounds of abuse like rape or cruelty.  Furthermore,  one wanders how exactly Parliament would define "rape" and "abuse."  This article brings Jane Eyre to mind.  According to this article, a man like Rochester was pretty much doomed to remain in a loveless, detestable marriage with a woman like Bertha, a lunatic.  Moreover, if Jane had married Rochester the first time, it appears that she would not have even been able to receive a divorce for Rochester's bigamy immediately.  And it clearly seems that Bertha would not have been able to get a divorce from Rochester at the time based on his affairs/adultery with his mistresses like Miss Varens and then if he had married Jane before the fire.  On the other hand, it is interesting that Tess of the Urbervilles does not seek a divorce after Angel Clare abandons her because by the time the novel was written, these suggestions and the Matrimonial Causes were already passed.  Then again, Tess was destitute and still very much in love.  Unfortunately, the public sphere of the courts and politics were dominated and ruled by men because a free woman who could choose a second marital partner or who had gained children or a fortune would have been seen as a threat to patriarchy, and not as a new beginning or progress/advancement for all.   

 

 

 

 

Works Cited

 

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

Perkin, Joan. Women in Marriage in Nineteenth Century England. Chicago: Lyceum Books, 1989.

“The Law of Divorce.” The London Times 23 March 1853: 5.

Savage, Gail L., “‘Intended Only for the Husband:’ Gender, Class, and the Provision of Divorce in England, 1858-1868.” Victorian Scandals: Representations of Gender and Class. Ed. Kristine Ottesen Garrigan. Athens: Ohio University Press, 1992.

Shanley, Mary Lyndon. Feminism, Marriage, and the Law in Victorian England, 1850-1895. Princeton: Princeton University Press, 1989.

Stone, Lawrence. Road to Divorce: England 1530-1987. Oxford: Oxford University Press, 1990.

 

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 For Additional Reading

 

Horstman, Alan. Victorian Divorce. New York: St. Martin’s Press, 1985.

 

 

 

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Project Group Members

 

Member Name

University

Course

 Kimberly Baldwin
 Western Washington University English 310: Love and Money in the 19th Century British Novel
 Angela Bartnick  Western Washington University English 310: Love and Money in the 19th Century British Novel
 Zachary Beare  Western Washington University English 310: Love and Money in the 19th Century British Novel
     
     

 

 

             

 

 

 

 

 

 

Project Completed: Winter 2008

 

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Comments (2)

Anonymous said

at 4:59 pm on Mar 18, 2008

What an interesting interpretation of a rather drab article in the newspaper. I really like how you not only break down the new regulations and how they apply to women, but that you take a practical look at literary characters in order to demonstrate the effects of those new regulations. I think it's fascinating to imagine, as you bring up, that if Jane Eyre had married Rochester first, she would not have been able to divorce him because of bigamy. I don't think I'd ever thought of things that way. As a modern female reader, this is simply unbelievable.

I think it's interesting that women had to apply for even a separation in the first place. In today's society, a husband and wife may separate without terribly disadvantaging either party. In Victorian England, however, a woman had to apply for separation from her husband, and it had to be recorded in a court of law, for her to even acquire any rights whatsoever. I wonder if she would have still needed a chaperone when leaving her house, or if this would have afforded her a few more rights in terms of independence. In any case, this law does seem quite sexist and limiting towards women. Thank you for your interesting analysis!

Anonymous said

at 5:45 pm on Apr 18, 2008

I found both your selection and your analysis so very interesting and thought provoking! I, too, as a woman in modern times, am quite shocked at the disparity of rights between men and women in Victorian England. I think the most shocking is that a man could obtain a divorce on the grounds of adultery alone and yet, even with Divorce Act of 1857 which added a few other grounds in addition to adultery by which a women could obtain a divorce, adultery alone was not grounds for divorce for women. I was interested to see the taking of ecclesiastical powers by Parliament and wondered if it was for reasons of power or whether it was done to make laws more stringent or more lenient. Adultery is considered biblical grounds for divorce for both men and women and I wonder if that issue had anything to do with the differences between the two entities or whether it was even debated. I think it would be fascinating if you could have a few examples of any of the more archaic rules that were in place prior to 1853 or mention whether in mensa et thoro any type of support was required from the husband. As a class we recently finished New Grub Street by Gissing which was published in 1891. I was fascinated by how modern it was in thought on divorce, especially by a male writer. Gissing states, "Isn't it a most ridiculous thing that married people who both wish to separate can't do so and be quite free again? ... so sooner such a profitless law is altered the better." (This in reference to the 1857 law). And yet, even though this is progressive thought divorce and the needless negative social stigma attached to it, it is women, once again, who are to blame for keeping such an unjust law in place, "It's because women who are happily married can't and won't understand the position of those who are not that there's so much difficulty in reforming marriage laws." (360) Great job!!

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