ESSAYS / ARTICLES
[Continued] What scope was there for escaping from marriage in the early modern period?
In the late seventeenth century, ways of escaping from marriage began to change. It now became possible for a couple to separate privately by mutual agreement, which did not require a case of adultery or cruelty. The couple were unable to re-marry, but this procedure saved money, time, and possibly reputation by not dragging the case through the courts. Also it enabled couples to live separately without fear of recrimination. Because women were legal non-entities, the agreement, as in the case of Lady Boteler, had to be drawn up by a male trustee, but the wife's interests would be looked after, and the husband would be obliged to pay alimony.
It was not until the end of the seventeenth-century that a couple could gain a full divorce by an act of Parliament. This would dissolve a legally valid marriage, and allow the couple to re-marry. Such separations were not unheard of in the past, for example the Marquess of Northampton and Sir John Stawell both got a full divorce from their adulterous wives in the sixteenth century, but these were exceptions. However, although such a separation could be advantageous to both a husband and wife, the whole procedure was still male dominated and far from straight forward. Again there were very few cases. Between 1670 and 1799 there were only 131 cases, and most of these were after 1750 (8). The whole process could be long and tedious, and usually involved three separate procedures. Firstly it was necessary to gain a separation from Bed and Board, which, as has been seen, could be problematic to begin with; secondly to win a case of criminal conversation which became obligatory in 1798 (which was the process in which the husband sued his wife's lover for "damages" in that he had damaged the husband's property by sleeping with his wife); and thirdly, to secure an absolute divorce by a parliamentary bill. Parliamentary divorces were also phenomenally expensive, and therefore were an option only available to a small number of people. Such a separation would also be very public and so potentially damaging to the reputation of both husband and wife, not to mention humiliating if the grounds of the case was sexual. In the in mid eighteenth century, for example, the Duke of Beaufort had to prove against his wife's claims that he was not impotent. Also, for the middle and upper classes, marriage was not only a union of hearts, but a union of property, wealth, and status, and a separation could involve many complications which could ultimately be detrimental to the interests of both parties. For the less privileged members of society, such measures were out of the question, and they had to resort to informal, illegal means of separating.
The most obvious way was to separate by mutual consent. This was similar to the formal procedure adopted by the wealthy, but lacked it's legality. If a couple's separation was not given the legal stamp of approval, then the couple could find themselves up for prosecution. In the late 1590's a Norwich couple were charged for not living together and excommunicated as a result, and Robert Crickner was charged;
"...for that he hath not kepte with Anne his wife by the space of theis foure yeares past, beinge lawfullie married to her." (9)
It is likely that separation by mutual consent usually took the form of desertion. This not only ended the unhappy relationship, but if, after a period of seven years, the deserting spouse had not returned and his or her whereabouts were unknown, the deserted spouse could remarry. In an age before police forces and mass communication, disappearing was probably not difficult. Undoubtedly this was overwhelmingly a plebian practice, for the responsibilities of wealth and land made it impractical, if not impossible, for the elite. Keith Wrightson states;
"This was no way out...for those whose property and obligations kept them tied to a particular locality." (10)
Usually the deserting partner was the husband. Arguably it was easier for him to leave one day and never return. He was more likely to find work in another town or village, and he did not have the same domestic responsibilities as a woman. A survey of Norwich in 1570 found that over 8% of married women had been deserted by their husbands (11), and according to the 1587 census of Warwick, 14% of the households of the lower classes were headed by women who had been abandoned(12). Desertion could, however, place the wife and children in a vulnerable position. It was not unlikely that they would struggle financially and have to resort to applying for poor relief from the Parish. If the wife left, then she would be more likely to elope, but it seems this was an infrequent occurrence.
Bigamy was always an option, and there are incidents recorded which show that some men and women had more than one husband or wife living. More often than not, this was because deserted wives had re-married, only to have their husbands return some years later. However, bigamy was against both the laws of the land and the church and in 1719, Catherine Jones was imprisoned;
"..for marrying Constantine Boone in the life of her former husband." (13)
Lawrence Stone believes that bigamy was especially common in the eighteenth century;
"There is good reason to believe that thousands, perhaps tens of thousands, of marriages in eighteenth century England were in fact bigamous." (14)
But he is undoubtedly exaggerating the situation. It may, perhaps, have been more common in the sixteenth century, for in the seventeenth and eighteenth it carried a high risk. In most cases, the punishment was a burning of the hand with a hot iron, but discovery of bigamy could, following the Act of 1604, result in the death sentence.
The lower classes also had their own customs which constituted a full divorce in the eyes of the community, if not in the eyes of the law. One method was the superstitious "Besom divorce". This was most prominent in the north of England and in Wales. It was part of an alternative way to marry and separate. To marry, a couple had to jump forward over a broom which was placed across a door way, without touching the broom or the doorway. To separate, a similar procedure was followed, only the couple had to jump over the broom backwards. If they succeeded, then they would be divorced and free to re-marry, so long as this ritual had been performed within the first year of marriage. Even this custom shows how much easier it was to enter marriage than it was to get out of it. In some areas of England it was custom that if the husband did not support his wife then she had the right to return her wedding ring, which constituted the end of the marriage. Just how common such rituals and customs were is impossible to tell for they are scarcely recorded.
One custom that frequently turns up in the records of the eighteenth century, however, is that of wife-sales. The first definite recording of this practice in England was in 1533, but it seems to have been more common in the eighteenth century. This irregular procedure involved a husband taking his wife to a public place, usually a market place, and then selling her to another man. The "sales" were condemned on moral grounds by the elite, and one man was prosecuted for what was hailed as a "notorious" act and "grossly against public decency and good manners" (15). But all in all, they seem to have been accepted. In most cases it seems that the arrangement was determined before hand with the consent of all parties involved. It appears that usually the man purchasing the wife was her lover. It is recorded in Jackson's Oxford Journal for 4th August 1770 that;
"Friday last one Richard Unwin, a shepher, at Ivor, near Uxbridge, sold his wife to a farmer at Cowley for twenty pounds. The woman it seems had lived with the former a twelvemonth, and as her husband found he was unable to prevail with her to return home, he resolved to come to an eclaircissement with the farmer, and they soon settled the matter in the above amicable manner."(16)
It seems that the actual "sale" was merely a public ceremony showing the community that the marriage was over, and that the wife now belonged to someone else. Lawrence Stone argues that this procedure was a development of the old custom of taking a bribe from the wife's lover in return for not prosecuting him. In one incident, recorded by Sarah Farley, a Bristol couple were actually advised to carry out the public sale for "mutual security", even though they had come to a private agreement. Such a procedure was beneficial to all. It ended the marriage with the consent of the community, and because the wife now had another man to provide for her, she was unlikely to fall into a poverty trap and thus rely on the charity of the parish. The procedure did carry some risks, and in later years it became prudent to draw up a written agreement, just in case the husband or wife broke the contract and laid claims to each other's goods, but it seems that in all it was a successful transaction.
However, such procedures largely depended on the consent of both partners. A wife could not get her husband to desert if he was unwilling to go, or if it was impractical for him to do so, and a husband could not sell his wife if she refused to be sold or would not recognise her new union. Therefore, in such cases, the unhappy partner would have to endure his or her misery. For some, the marriage was so unbearable, that they resorted to suicide or the murder of the husband or wife, but there were relatively few cases.
There where then ways an unhappy couple could obtain a separation in the early modern period. If it could be proven that the marriage was invalid, a couple could gain an annulment which would completely free them from one another and allow them to re-marry. If the marriage was legally binding, then the couple could apply for a "divorce from bed and board". This would not enable them to re-marry, but it would enable them to legally live apart. After the mid-seventeenth century, it was possible for couples to gain a full divorce by Parliamentary Bill which would enable them to re-marry, but cases could be time-consuming as well as phenomenally expensive. For those who could not afford legal separations, there were popular customs which allowed couples to part, such as wife-sales, "besom divorces", or alternatively there was bigamy, desertion or elopement. However, all in all, dissolving a marriage, valid or not, was fraught with difficulty in early modern England, and the only real hope of relief was the natural death of one partner. Martin Ingram concludes;
"The potential avenues for escape were few and narrow" (17)