Divorce in England and Wales

Before the Reformation the Pope could annul marriages in England and Wales but after 1530 the church courts in those countries had no power to annul a valid marriage, though elsewhere in the Protestant countries of northern Europe a form of divorce had developed that allowed at least the innocent party to remarry. In England and Wales a second marriage was only possible if one of the parties died. The partial remedies that were found and are described below often had unsatisfactory results. It was not until after the Matrimonial Causes Act 1857 and into the 20th century that the possibility of divorce and re-marriage became available to the majority of people.

Divorce by Church
Before 1858 the church courts could provide only one of two remedies. Both were costly and infrequent, there being only about forty a year in the 1840s:


 * Divorce from bed and board (a mensa et thoro, literally from table and hearth) which separated the parties but did not allow either to remarry during the lifetime of the other. It could be granted on grounds of life-threatening cruelty, or of adultery by the husband or the wife. The payment of alimony (means of support) to the woman might then be enforced through the civil courts.
 * Divorce from the chain or bond of matrimony (a vincula matrimonii) which declared invalid the marriage itself and thus allowed either party to remarry. It could be granted if the marriage were not consummated within two years, for impotence, frigidity or lunacy, or if the marriage could be shown to be incestuous or bigamous, or carried out by force or in error, or, before 1753, if one of the parties lacked age and consent. These were ripe fields for argument and appeal if property was involved.

For the church courts and their records see the article Church Courts in England and Wales. The possibility of appeals from the lower to the higher courts (in the Province of Canterbury to the Court of Arches, in the Province of York to the Consistory Court of York, to the High Court of Delegates, and, after 1834, to the Privy Council) is there outlined. In the Province of Canterbury the published index to the records of the Court of Arches is particularly useful. Orders for maintenance arising from such actions might be recorded on the Decree Rolls of the Court of Chancery (C 78).

Divorce by State
It became clear that a valid marriage could only be dissolved with the aid of the legislature and in the late seventeenth century a practice sprang up of procuring divorce by private Acts of Parliament. See the article The Parliamentary Archives. In 1668, Lord Roos (later Marquis of Granby), having obtained a divorce a mensa et thoro on account of his wife’s adultery, obtained an Act of Parliament to bastardise her children and then, in 1670, a further Act to annul the marriage so that he could remarry. The diarist John Evelyn, who heard the close-run debate in the House of Lords, said it was ‘an occasion and sign not seen in England since the time of Henry VIII’, with the king on the throne and ‘all the peers sitting with their hattes on’.

The first example of a divorce without the previous consent of the church courts was that of the Countess of Macclesfield, who was separated from her husband by an Act in 1698. Having been married at the age of fifteen in 1683, she and her husband lived apart from 1685. When she started to produce children by Lord Rivers in the 1690s the Earl of Macclesfield instituted proceedings in the church courts for a divorce a mensa et thoro. The Countess, fearing the loss of her fortune, resisted the action and the Earl, because of the delay, started proceedings in the House of Lords.

The resulting Act made her two children illegitimate. The Earl was not to be responsible for her debts, but because his profligacy had contributed to his wife’s misconduct, the Act ordered him to repay her marriage portion. This was the first divorce Bill to be passed by both Houses of Parliament and to become law without a judgment first being obtained in the church courts.

These procedures were extremely expensive and only fifteen such Acts were passed before 1750. In the House of Commons they were decided at sittings of the whole house and it was not until 1840 that they were referred to a committee of nine members. Acts passed in England in the period 1801-1947 are indexed in the Index to Local and Personal Acts (1949) [not in FHL].

By 1857 there had been in England and Wales only 317 such divorces, all but four obtained by men who were anxious to re-marry to beget heirs. They usually followed a divorce a mensa et thoro in the church courts and the recovery of damages from the adulterer in a civil action (in the Court of King’s Bench or Common Pleas) for ‘criminal conversation’. In 1798 it was agreed, therefore, that any future Act could only be passed after these two procedures had been gone through and in 1809 the House of Lords ordered that a transcript of the previous court action for criminal conversation should always accompany future Bills for Divorce.

Damages and Alimony
At his divorce in 1692, the Duke of Norfolk asked for damages from the co-respondent, a Dutch gambler, of £100,000 but was awarded 100 marks (about £68) by the jury who considered him no better than his adulterous wife (who, incidentally, remarried as a ‘spinster’), causing the Lord Chief Justice to remark ‘how low virtue and chastity were valued in England’. However, damages of £10,000 were often awarded by the 1790s, with £20,000 in a few cases.

If a woman brought an undefended action for divorce, as Mary Bayley, of Thame did in the Court of Arches in 1754, providing clear evidence through witnesses of her husband’s adultery but not herself asking for alimony, collusion with her husband was strongly suspected. However, a divorce a mensa et thoro was granted, on the condition that she first gave in a bond that she would not marry again, and it seem that bonds of this type were normally required.

Elizabeth White married Robert Bell in the City of London in 1722 but a year later he deserted her and joined the army. In 1735, describing herself as a widow, she married Thomas Birn, an ‘anvill maker’ in Chelsea, but eight children and fifteen years later, he threw her out. The Court of Arches, to which she took her problem in the hope of some relief, allowed her alimony of £5 quarterly whilst her case was pending and £60 to cover her interim costs. However, Robert Bell having returned, the Court eventually annulled her second marriage and as a result it could not order her any form of maintenance or relief.

Payment of the wife’s costs by the husband, if she lacked sufficient separate estate, as was the case with Mrs Bell, became a general rule in divorce proceedings, though if there were a co-respondent who could be shown to have alienated the wife’s affections, he could be ordered to pay the whole or part of the costs. In the same way, alimony could usually be obtained by the wife pending the divorce action, one fifth of the joint income being normal. Permanent alimony could only be granted after a final decree of separation.

Desertion and Prosecution
If one party to a marriage disappeared for seven years it was, by the eighteenth century, generally assumed that the deserted one could marry again, though if the errant one returned, the first marriage took priority (as it had to do in the case of Mrs Bell mentioned above). Desertion and bigamy were not infrequent, but prosecutions were rare.

When deserted wives and children became a charge on a parish, the husband might be pursued by the overseers of the poor and presented at Quarter Sessions. Such cases seem rare before the second half of the eighteenth century. In Hertfordshire there was only one such case between 1700 and 1752, that of Thomas Pryor of Stevenage, who was detained in 1714, whipped and then discharged. In the second half of the century, cases became more frequent, the men being imprisoned with hard labour for two to four months and often publicly whipped. In the nineteenth century such cases were usually dealt with at petty sessions. After 1834, the local Poor Law Union’s Relieving Officer might also pursue errant husbands in the hope of extracting money with which to support abandoned wives and children either at home or in the workhouse. The costs to the parish associated with such a prosecution, however, might be high.

Wife Selling
Prior to 1754 some people in England and Wales thought of marriage as a publicly witnessed contract rather than as a ceremony in a church. It was thus not such an outrageous idea that a wife might be dispensed with by another publicly witnessed contract, by sale in the market place or local public house. A miniscule number of wives were sold in this way for nominal sums, mostly it would seem by prearrangement and to the persons to whom they had transferred their affections.

It was a procedure known in the 17th century but reported mostly of artisans in the 18th century and of poor labourers in the 19th century. Most known cases of this very public form of divorce, the last in 1887, are listed in S.P. Menefee, Wives for sale (Oxford, 1981) [not in FHL], but a few are found into the 20th century.

Deeds of Separation
Husbands and wives who agreed amicably to live apart, if they had a little property, might set out their arrangements in a deed (though oral agreements were considered binding) which would be upheld by the courts, provided that separation followed immediately and was not brought about by threat. The deed would set out the future custody of the children and provide mutual covenants not to sue for the restitution of conjugal rights, the husband agreeing not to molest his wife and trustees acting for the wife indemnifying him against any debts which she might contract.

Early examples are to be found enrolled on the Close Rolls (C 54) and the Court of Chancery occasionally heard petitions from aggrieved parties when the terms of their deeds had not been kept. These deeds effectively allowed cohabitation and perhaps (before 1857) remarriage, without fear of prosecution. There is an example from 1783 in the Wheler of Otterden Place papers at Kent Archives Office. An interesting 1823 example of an Irish deed of separation, following ‘unhappy differences’, in which the wife was allowed an annuity of £130, is given in Donal Begley, Irish Genealogy: a record finder (1981) [FS Library book 941.5 D27i].

Such deeds are not common but they seem to become more frequent towards the end of the nineteenth century and in the early part of the twentieth when the divorce laws did not recognise cases of basic incompatibility. Unless enrolled, however, the deeds themselves, as private documents usually only survive amongst solicitors’ papers. References to those that have been deposited in county record offices may thus be found in the online Access to Archives (http://www.nationalarchives.gov.uk/a2a).

Divorce Act 1857
Bigamy having become a quite frequent crime (2,555 cases were tried between 1805 and 1861), commissioners were appointed in 1850 to inquire into the law of divorce and, in 1857, the Divorce and Matrimonial Causes Act put an end to actions for criminal conversation and took away the authority of the church courts in divorce matters, placing them under a court for Divorce and Matrimonial Causes, presided over by three judges.

The Court for Divorce and Matrimonial Causes heard petitions for:


 * Divorce, in which a civil or religious marriage could be dissolved so that, after the conditional decree nisi had been made absolute, either party was at liberty to marry again. The grounds for divorce remained basically as they had been before 1857, the man had to prove adultery by the woman or the woman had to prove her husband’s adultery and (until July 1923) also his cruelty, incest or rape. The name of the person with whom adultery had been committed had to appear as co-respondent in the petition, damages might be claimed against him (a possibility abolished in 1970) and he might be ordered to pay the costs.
 * Nullity, in which a marriage might be declared null and void if there were a prior legal marriage by either party, or insanity or permanent impotence at the time of marriage, or where the marriage had been obtained by force, fraud or imposition, or was within the prohibited degrees or took place before a decree absolute was granted. Such petitions were very infrequent.
 * Judicial separation, in which the marriage was not dissolved and neither party could marry again, but in which the Court stopped the husband from interfering in his wife’s concerns and placed her in the legal position of an unmarried woman, able to own property and responsible for her own debts. Judicial separation was generally considered the wife’s remedy rather than the husbands, but either could sue on the ground of adultery, or of cruelty or of desertion without cause for two or more years (though not if the husband were on active service) and the woman might be awarded alimony. Judicial separation was sometimes sort when there were not sufficient grounds for divorce or divorce itself was repugnant on religious or moral grounds.
 * Restitution of conjugal rights, in which the Court could order a return to cohabitation when either the man or woman had separated from the other party without lawful excuse, and, if the Court’s order were disobeyed, might result in an action for desertion and contempt of court, the injured party petitioning for an accelerated hearing. By 1914, however, it had been shown that such a decree was almost worthless if the wife chose to ignore it, and since 1886 the court had been able to order periodic payments to the petitioner by the respondent as seemed just. The remedy of restitution of conjugal rights was abolished in 1970.
 * Legitimacy, in which persons sought to establish the validity of their own marriages, or the marriage of their parents, or that of their grandparents, and the legitimacy of the issue of those marriages, but in which the proceedings might be unduly protracted and expensive.

Every decree of divorce, nullity or separation was in the first instance a decree nisi (the grounds having been proved) which was to take effect unless some cause or reason otherwise was shown. The decree was not usually made absolute until the expiration of six calendar months or, after 1 September 1972, six weeks. The costs were normally paid by the husband except in cases where the wife was found guilty of adultery and the costs could be recovered from the co-respondent.

The court became operative on 11 January 1858 and five marriages were dissolved on 10 May 1858 but in the first ten months only 37 divorces were granted out of 288 petitions. In the first ten years there were 1,279 dissolutions of marriage and 213 judicial separations. The cost of an action remained high, the procedure taking about eighteen months to complete, but a tiny number of very poor people (not worth £25, beyond wearing apparel) might, under very stringent conditions, proceed in forma pauperis.

The arrangements made in 1858, in which all the costly proceedings had to take place in London, were a compromise with the Church of England and it was made clear that no clergyman of that Church or of the Church in Wales could be compelled to marry a divorced person whose former spouse was still living though he must allow his church to be used for that purpose.

In 1878 the power to grant judicial separations and maintenance to the wives of husbands who had been convicted of aggravated assault against her was extended to the local Justices of the Peace or magistrates, and in 1886 the husbands of deserted wives and children could similarly be ordered to pay up to £2 a week for their maintenance. The Poor Law Unions in some areas made such an order a precondition before additional relief could be paid. Great numbers of cases concerning marital violence and the maintenance of children were dealt with in this way by local magistrates and by 1900 over ten thousand maintenance or separation orders were being made each year. The parties could not re-marry and the women in particular were often put in most difficult situations. Later, when divorce had become more widely available, separation orders were more frequently sought by those with religion objections to divorce.

In 1914 poor persons possessed of less than £50 (excluding clothes and trade tools) or a woman earning less than £2 a week, could be given the services of a solicitor and counsel without charge, providing that the out-of-pocket expenses of the solicitor and witnesses were paid. Eighty-eight did so that year. This effectively reduced the cost of a divorce to less than £10. By 1920 some forty per cent of divorces were thus assisted. The remainder normally cost about £50 to £60.

1923
It was, however, only in July 1923 (following the failure of many marriages during the First World War) that a divorce could be granted on the petition of the wife solely because of her husband’s adultery. The concoction of bogus cases in which men provided their wives with suitable pre-arranged evidence of ‘adultery’ (by sitting up all night in a hotel which catered for the trade with a lady provided by an agency) became common and was ridiculed by A.P. Herbert in his novel Holy Deadlock (1935). If both parties to a marriage admitted that they had been unfaithful, that was no grounds for divorce, nor indeed was desertion, though there might be grounds for judicial separation, and so if there was mutual agreement to end the marriage the man usually took it upon himself to be ‘the guilty party’ in this way. Incompatibility did not come into it, there had to be ‘the outward visible sign of physical misconduct’.

In 1922 a number of the towns in which Assizes were held had been named as suitable for hearing some kinds of uncontested divorce and in 1927, twenty-three district registries were made available for the filing of petitions. At these, within ten years, a quarter of all petitions were being filed, the decrees being issued by the Supreme Court.

Matrimonial Causes Act 1937
A.P. Herbert himself promoted the important Matrimonial Causes Act 1937 which greatly extended the grounds for divorce and which came into force on 1 January 1938. From that date a marriage could be made void:


 * By refusal of the respondent to consummate the marriage.
 * Because either party was, at the time of marriage, of unsound mind, mentally defective or subject to recurrent fits of insanity or epilepsy.
 * Because the respondent suffered from venereal disease in a communicable form at the time of marriage.
 * Because of adultery by either party.
 * Because of desertion for three years before the petition was made, or
 * Because of cruelty to the petitioner.

That Act also gave the courts power to pronounce a decree of presumption of death and consequent dissolution of marriage.

The Second World War caused the collapse of many marriages and by 1950 there were about 20,000 divorces a year. Assisted by the introduction of legal aid in the 1950s, the number of divorce cases increased rapidly. At that time legal aid was not normally available in undefended divorce and judicial separation cases, but in disputed cases it was available to those whose disposable income (after rent and rates, etc., had been paid) was under £420 a year and whose disposable capital (not including the house or household effects) was under £500.

Divorce Reform Act 1969
There were many minor changes to the law but the Divorce Reform Act in 1969 made irretrievable breakdown of a marriage the sole grounds for divorce, the court being satisfied that there had been adultery, unreasonable behaviour, desertion for two years or separation for five years (or for two years where the respondent consented to the decree). The number of divorce petitions heard locally had greatly increased and since 1971 (when the Assize courts were abolished) all matrimonial causes have commenced in one of the divorce county courts or in the Divorce Registry (acting as a divorce county court) in London. The courts have no territorial jurisdiction and a petition can be heard or moved anywhere.

In the 1980s the number of divorces rose to 150,000 a year and today a third of all marriages end in divorce. The powers of the Divorce Court had, in 1873, been transferred to the Probate Divorce and Admiralty Division of the High Court and, in 1970, that Division became the Principal Registry of the Family Division. This moved from Somerset House to First Avenue House, 42-49 High Holborn, London WC1V 6NP, in 1998.

Central Index of Decrees Absolute 1858-date
The Divorce Registry at First Avenue House holds a Central Index of Decrees Absolute, regardless of where granted, from 1858 to date. The indexes are in the form of lists fronting boxes of decrees, 1858-1946, on microfiche 1947-69 and on computer from 1981. They are not public documents but will be searched by the officials on payment of fees. The search fee (set in 1995) is £20 and covers a three-year search whilst you wait, or a 10-year search if a delay is acceptable or application is made by post. A certificate of the decree absolute or of the negative result of the search is then issued. Decree Absolute search forms, Form D440, may be downloaded from HM’s Courts and Tribunals Service’s website http://www.hmcourts-service.gov.uk or obtained from the Family Proceedings Department (Room 2.03) at the Principal Registry of the Family Division. Should the search reveal that the decree was made by a divorce county court, a copy of the certificate would be available from that court.

The decree provides legal proof of a divorce, but the information contained is minimal. It usually shows the date and place of marriage, the names of the parties, and in general terms, without specifying the details, the supporting fact upon which the decree is based. Prior to 1969 the name of any co-respondent is also given.

Case Files 1858-1937
However, the case files covering all the matrimonial cases in England and Wales, whether related to judicial separation, restitution of conjugal rights or decrees nisi, whether successful or not, 1858-1937, are at The National Archives (in J77 with indexes in J8). These may include copies of the marriage certificates, the petitions and, from the 1870s, the decrees nisi and absolute, but the majority of files have been extensively weeded or ‘stripped’ of the less formal papers, such as applications for ancillary relief, which have been destroyed.

Between 1858 and 1927 the records are almost 100% complete and between 1928 and 1937 about 80% complete. A representative sample of ‘full files’, in which all the case papers have been preserved as illustrating different kinds of proceedings of particular interest, has been retained but there are only 115 of these between 1858 and 1934. They are listed by name and number at the front of the Class List (J77) at The National Archives. All the case files are open to public search (as they come under the 30-year rule introduced in 1994).

Since 1937 only a representative sample of case files (less than 0.2%) has been kept. No files survive from the district registries set up in 1927 (only that of Wallis Simpson in 1936 has been preserved) and all the more recent divorce records, apart from the centrally filed decrees, are now destroyed after twenty years. The sad and widespread destruction of modern divorce records stems directly from the Report of the Committee on Legal Records (HMSO, 1966) chaired by Lord Denning.

The courts were keen that there was no collusion between the parties and if collusion or deceit were suspected the Queen’s Proctor might investigate the case and cancel a decree. Seventeen volumes containing summaries of cases in which the Procurator General intervened (usually to prevent a decree from being made absolute), 1875-1977, are at The National Archives (TS 29) but closed for 75 years.

In cases after 1938 where the official solicitor acted on behalf of one of the parties (usually because a child or person of unsound mind was involved) a two per cent sample of the files has been retained. The 210 files, 1938-1973, at The National Archives (J 132) are similarly restricted.

Online Indexes 1858-1937
The names of petitioners, respondents and co-respondents are indexed, 1858-1937, in The National Archives’ online Catalogue http://www.nationalarchives.gov.uk/catalogue/search.asp, the date in the index being that on which the petition was first filed, not the date of any decree. Several files may exist for one divorce but these are usually cross-referenced. For instance, a woman might (before 1970) sue for restitution of conjugal rights, and if the man did not return to the marital home she might later sue for divorce, both actions being separately indexed.

From 1907 the index references have letter prefixes which indicate the types of petition involved, H referring to a petition by the Husband and W to one by the Wife.D is for Divorce,JS for Judicial Separation,N for Nullity, RCR for Restitution of Conjugal Rights, Legit for a declaration of Legitimacy, and Prot for a Protection Order about the wife’s earnings and property. An X indicates that the type of petition is not stated in the old manuscript calendars (in J 78) from which these references are taken.

Calendars 1858-1958
These old calendars, ‘Indexes to divorce or matrimonial causes files’, in 42 volumes, in date order by petitioner, retain a certain value for they continue to 1958 and after 1937 they contain the only official references to failed petitions for which the case files have been destroyed. They are available on FS Library microfilm 2358042-57 but the series is far from satisfactory.

It contains no indexes as such for the four years 1946-9 but from 1 November 1946 to 9 June 1951 there are Divorce Receipt Books (included in the filming) which list in chronological order the petitions filed at the Principal Registry. The lists in Books 28 and 29 run concurrently from November 1946 to December 1947 and both books need to be searched. However, the lists for 1946-7 merely show the surname of the petitioner and the file number. The identification of anyone with a frequent surname is almost impossible unless an exact date is known.

From 8 December 1947 to 9 June 1951 (Books 30-32) the lists are slightly better in that they show the initials of both parties and, very occasionally, the maiden names of the women. They overlap with handwritten indexes similar to those before 1946, running from January 1950 to the end of 1958, showing both names in full. The index volume which begins on 1 January 1950 contains references to divorces in an unidentified earlier period; perhaps to divorces in the first part of 1946, as one of the sections is so labelled.

In 1954 the names of the months are inserted in the appropriate places in the calendars but otherwise, except in the Receipt Books, there is no division in the years. After 1937, as mentioned, these calendars will contain the only official references to failed petitions for which the case files have been destroyed. The cases to which they refer may, however, have been reported in local newspapers.

Newspapers
Formal divorce being relatively rare and newsworthy, it frequently formed the subject of news reports which give much more detail than the decree. Those reported in The Times were indexed in Index to Divorces (As listed in Palmer’s Index to ‘The Times’): 1788-1910 (About Archives, 1989) [FS Library book 942.1/L1 B32pa; microfiche 6,344,779) but may now be found more directly, 1785-1985, through the subscription database The Times Digital Archive (£/$).

Scotland
After the Reformation in Scotland divorce was available for adultery from 1560 and for desertion from 1573 and could be granted (for marriages in Scotland only) by the Commissariot Court of Edinburgh until 1835. The records are in the National Archives of Scotland and an index for the period 1658-1800 is printed in Francis J. Grant,The Commissariot of Edinburgh: consistorial processes and decreets 1658-1800 (Scottish Record Society, vol. 34, 1909).

However, the Court of Session in Edinburgh dealt with most cases, 1830-1984, since when they have been mainly dealt with by the local Sheriff Courts which had themselves heard separation cases since 1907. Divorce was not common in Scotland and there were only 174 between 1846 and 1857, three times as many for adultery as for desertion.

Ireland
The 1857 Act did not apply to Ireland, where those who wanted a divorce still had to rely on the church courts or to promote a private Act of Parliament. The powers of the church courts in the regulation of separations and annulments in Ireland were removed in 1869 and from then until 1997, under the influence of the Catholic majority, the dissolution of marriage was prohibited. In Northern Ireland, however, after 1922 a private Act again became possible and the provisions of English law were extended there in 1939.

Acknowledgment
This article is adapted and revised with permission from Anthony Camp’s articles ‘Marital Discord’ in Family Tree Magazine (UK; http:www.family-tree.org.uk), vol. 16, no. 6 (April 2000) pages 17-18, and ‘Divorce Indexes at the Family Records Centre’ in Family Tree Magazine, vol. 18, no. 4 (February 2002) pages 9-11.