The Matrimonial Causes Act transferred British divorce cases from the ecclesiastical courts to the civil courts, creating the Court of Divorce and Matrimonial Causes. It modified the legal definition of a single woman, addressed custody issues, and broadened the legal grounds for divorce.
Family law in England had been adjudicated through church courts since the Middle Ages. Over time, jurisdiction in the four branches of English law—family, common, equity, and maritime—had become indistinct, and by the mid-nineteenth century, it was necessary to redefine the proper jurisdiction of the various courts and other legal institutions. British divorce law also required revision, because laws dating from the medieval era no longer addressed the lifestyles and worldviews of Victorian subjects. The Industrial Revolution
Sir Thomas Erskine
Canon law had recognized two kinds of divorce. First, annulment, or divorce a vinculo matrimonii (from matrimonial bonds), was granted for consanguinity, insanity, or failure to consummate a marriage. Either party could sue for annulment, either could remarry, and neither retained rights to the other’s property. Any offspring of an annulled marriage were delegitimized. Second, in divorce a mensa et thoro (from bed and board), either party could sue and both were released from the obligations of marriage, but the bonds were not dissolved: Both spouses were free to separate, but neither could remarry. Only the husband retained property rights. Although the wife was often granted maintenance, payment was unenforceable until 1813, when noncompliance could be punished by imprisonment. Maintenance was paid only during the husband’s lifetime, and a wife accused of adultery was never granted alimony. Desertion was not recognized.
Several social factors complicated the divorce debate. Since Anglican clergy presided in ecclesiastical courts, the appropriateness of ecclesiastical jurisdiction was questioned by Dissenters and Nonconformists. By the mid-nineteenth century, only about half the British population was composed of churchgoers, and half of those were not Anglican.
Parliamentary divorce, available since the seventeenth century, involved a long, complicated, costly, and embarrassing procedure: First, a husband seeking a parliamentary divorce had to charge his wife with adultery in an ecclesiastical procedure called a criminal conversation suit. Once a church court granted the divorce, the matter went to the House of Lords. If that house of Parliament granted the divorce, it had to be granted by the House of Commons as well, and it would finally be submitted for royal assent.
Few could afford parliamentary divorces. By 1857, only about 225 had been granted to husbands, and only four to wives—in cases of adultery with bigamy or incest. Divorce publicity became copy for a salacious, vulgar press, offending Victorian sensibilities and morality, which were further offended by makeshift solutions: desertion, emigration, bigamy, and wife selling. What were the miserably married to do?
Divisions within the Church of England further complicated the debate. Members of the High Church movement opposed divorce reform, believing marriage to be a sacrament and fearing that any changes would open the floodgates to divorce, which would, in turn, adversely affect society by destabilizing the family unit. Pope Pius IX had announced in 1850 that a Catholic hierarchy would be installed in England, and this “papal aggression” augmented British anti-Catholic sentiment despite the government’s introduction of toleration measures. The average British Protestant felt that if the pope opposed divorce, then the government ought to support divorce reform.
Some Dissenting reformers contended that the grounds for divorce needed broadening, that divorce should be available despite personal finances or connections, and that marriages were insupportable if they rendered spouses’ lives miserable. Conversely, the Evangelical movement opposed reform that might threaten morality, and a too casual rejection of the marriage sacrament was seen as immoral.
Clergymen turned to the Bible
Like much nineteenth century British legislation, which was often meant to avert potential social revolutions by releasing revolutionary pressure before it reached the breaking point, the law enacted in 1857 as the Matrimonial Causes Act represented a compromise. It palliated the public without going as far as its most radical voices demanded. It responded to social changes rooted in industrialization and a changing British worldview that was coming to value companionate marriage, social equality, and utilitarian notions of “the greatest good for the greatest number.”
One indication of this changing British worldview was a rise in what would later be termed feminism. Sir Thomas Erskine Perry
In 1854 and 1856, Robert Monsey Rolfe
English Laws for Women in the Nineteenth Century (1854) and A Letter to the Queen on Lord Chancellor Cranworth’s Marriage and Divorce Bill (1855). Rolfe’s 1856 bill was instigated by John Singleton Copley,
The new law retained three causes of action. Annulment was retained, as the ecclesiastical a vinculo matrimonii became the civil “decree of nullity.” An absent spouse, moreover, could still be ordered to return under a cause of action known as a “restitution of conjugal rights,” and one could still sue as well for “jactitation of marriage” to eliminate false claims of matrimony. Divorce a mensa et thoro, meanwhile, became “judicial separation.” Innovations introduced by the Matrimonial Causes Act included a spouse’s “desertion without cause” as grounds for divorce, as well as the termination of property rights of a deserting husband.
Absolute civil divorce was instituted. Such divorces permitted remarriage, rarely delegitimized the children, and allowed a husband to sue for adultery. A wife could sue for adultery with incest, bigamy, life-threatening cruelty, rape, sodomy, bestiality, or desertion. Criminal conversation suits were abrogated. Under the law, a husband’s adultery was to be forgiven but not a wife’s, because the latter could result in “spurious issue” that would contaminate the husband’s property rights and bloodlines. Also, in Victorian culture, female adultery was more likely to offend the moral sense and norms of respectability than was male adultery.
The act created the Court of Divorce and Matrimonial Causes, which would adjudicate issues of custody, child support, and children’s education. The court could place children under the protection of the Court of Chancery
Women’s maintenance issues improved. Copley
The legal position of women in Great Britain changed. They could enter into binding contracts or tort claims and could otherwise sue and be sued. If a woman were self-supporting, she could seek protective orders against her husband or his agents were she deserted; she could also be awarded twice the amount of the seized property in damages.
Although the Matrimonial Causes Act did not provide for gender equality, causing women’s rights advocates to claim that it “took the wind out of our sails,” the act arguably made possible the reforms for women that would continue to be passed throughout the following seven decades. These reforms included a series of Married Women’s Property Acts. The act of 1870 allowed women to keep assets they earned after marriage. The act of 1882 further broadened women’s property rights, and the one of 1884 abrogated the idea of “coverture” and gave women independent legal existence. Finally, the Married Women’s Property Act of 1925 separated the financial affairs of husband and wife.
In addition to property rights issues, many other reform acts followed the Matrimonial Causes Act. The Divorce Act of 1923 granted women divorces for simple adultery and restricted the husband’s child custody rights, and the 1886 Guardian of Infants Act gave a woman guardianship of her children if the father died. The 1870 Education Act provided girls with elementary education, the 1918 Representation of the People Act allowed women over thirty to vote and become members of Parliament, and the 1919 Sex Disqualification Removal Act opened the professions to women. The Representation of the People Act of 1928 enfranchised women aged twenty-one or over.
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Hirsch, Pam. Barbara Leigh Smith Bodichon, 1827-1891: Feminist, Artist and Rebel. London: Chatto & Windus, 1998. Based not only on published accounts but also on many manuscripts and records, this study provides a measured assessment of Bodichon’s life, highlighting her accomplishments in many fields and noting her contributions to the women’s movement. -
Holcombe, Lee. Wives and Property: Reform of the Married Women’s Property Law in Nineteenth-Century England. Toronto: University of Toronto Press, 1983. Discusses divorce reform in England through 1882, placing the Divorce Act in the context of other such reform acts. -
Horstman, Allen. Victorian Divorce. New York: St. Martin’s Press, 1985. Provides a detailed contextualization of the issues involved in divorce in Victorian England, including legal, social, and practical considerations. -
Orr, Clarissa Campbell. Women in the Victorian World. Manchester, England: Manchester University Press, 1995. Includes an essay evaluating Barbara Leigh Smith Bodichon’s work as a political activist; other essays suggest how leaders of the feminist movement influenced the advancement of women’s causes such as marriage law reform in Victorian England. -
Stetson, Dorothy M. Woman’s Issue: The Politics of Family Law Reform in England. Westport, Conn.: Greenwood Press, 1982. A clear introduction to the politics surrounding the passage of family law reform legislation during the nineteenth century. -
Stone, Lawrence. Broken Lives: Separation and Divorce in England, 1660-1857. Oxford, England: Oxford University Press, 1993. Valuable collection of case studies, put forward and analyzed by the leading expert on the history of the English family.
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Barbara Leigh Smith Bodichon; Henry Brougham; George IV; Lord Palmerston.