What
scope was there for escaping from marriage in the early modern period?
In the early modern period, the institution
of marriage was seen as almost sacred. Protestant theologians denied that
it was a sacrament, but they maintained the pre-Reformation view that it
was a holy union ordained by God for the prevention of sin and fornication.
It was also seen as the backbone of society. It was believed to be an institution
essential for the preservation of law and order, and was seen as a microcosm
of society at large. William Gouge, the famous 'conduct book' writer, wrote
in his Of Domesticall Duties (1622)
"...a family is a little Church and
a little commonwealth."(1)
The breakdown of a marriage was therefore
a source of great concern. Not particularly because it meant the relationship
between a certain couple had broken down, but because it threatened social
stability, and the potential breakdown of social order and hierarchy. The
separation of a man and wife was to be avoided at all costs. Couples experiencing
marital difficulties were expected to work through them and learn to live
with, and love, one another as a husband and wife should. The courts were
far more concerned about restituiting marriages than dissolving them.
Yet, as always, there was some disparity
between theory and practice. Then, as now, not all marriages were happy,
and many couples desired to extricate themselves from a union which seemed
to have the curse of hell upon it rather than the blessing of heaven. The
shadowy figure of Death could be relied on to end some marriages, for in
the early modern period Death was a frequent visitor, and it was not uncommon
for a person to be widowed several times in their life. Martin Ingram states
in his influential book, Church Courts, Sex and Marriage in England,
"To be sure, unsatisfactory unions
were more likely to be resolved by the early death of one of the parties
than is the case today, but since the median duration of marriages in pre-industrial
England may have been as high as twenty years there was still much scope
for marital misery". (2)
Both the law and the Church were aware
that in some cases separation was necessary, and there were ways an unhappy
couple could separate. Henry Smith in his Preparative to Marriage
(1591) wrote;
"As God hath ordained remedies for
every disease, so he hath ordained a remedie for the disease of marriage."
(3)
But separation was not a remedy that could
be cheaply bought; and it was largely exclusive.
In the sixteenth and early seventeenth
centuries, there was no "divorce" as such; no means of dissolving a legally
valid marriage. However, it was possible to dissolve a marriage if it could
be proved that the union had never been valid in the first place - hence
the marriage could be declared "null and void". In all there were four
grounds on which an annulment could be granted. Firstly if the couple were
related within the forbidden degrees of kinship, secondly if the marriage
had never been consummated, thirdly if one or both of the members had previously
been contracted, and finally if one or both partners was under the age
of consent at the time of the union. Of all, perhaps the first and the
latter would have been easiest to prove, but Ralph Houlbrooke argues that
even if it could be proved that a couple were related within the prohibited
degrees, this would not necessarily mean an annulment would be given. The
court would have to take into consideration the practical effects of dissolving
the marriage, such as the welfare and maintenance of any children the couple
had.
It could easily be proven with a simple
calculation if one or both partners was underage at the time of marriage,
but again proof would not necessarily be enough to persuade the courts
to declare the marriage invalid. On top of this, it would be necessary
to prove that once the couple had come of age, they had not then given
their consent to the union. If it seemed they had, for no matter how brief
a time, then the marriage would be a legally binding one, even if it had
not been consummated. Indeed, non-consummation was no guarantee that a
case would be successful. In 1715 for example, Sir George Downing and his
wife Mary tried to get their marriage of fifteen years annulled. They argued
that they had been forced into the marriage in their youth when Mary was
only thirteen years of age, and had never wanted it or consented to it.
It was established that the marriage had never been consummated, but because
they had both been above the age of consent, which was twelve for a girl,
and fourteen for a boy, and there had been no incident of adultery or cruelty,
the case was dismissed with the following comment;
"...each party was consenting to
the marriage, and was old enough to give such consent, according to the
known laws of the kingdom...They were actually marry'd according to the
form prescrib'd by the Church of England...they are therefore man and wife
both by the laws of God and the land." (4)
The most common ground on which couples
tried to seek an annulment, and the ground on which they appear to have
been most successful, was that of pre-contract. A couple could gain an
annulment even if that pre-contract had been unsolemnized and unconsummated,
and in the sixteenth century it could be granted without any proof, although
some kind of evidence would normally be requested. However, after the act
of 1604 which made bigamy a felony and the decision of the Cromwellians
during the interregnum to make adultery also punishable by death, this
ground was scarcely used. To want to escape an unhappy marriage was one
thing, but to pursue a course which could lead to the death of one partner
was another. Even if an annulment was granted, this would not necessarily
mean an end to problems. It could be a classic case of jumping out of the
frying pan into the fire. Women would not be entitled to what would otherwise
have been their dower rights, and all children born of the union would
be declared illegitimate. If a desperately unhappy couple thought there
was a chance they could obtain an annulment, they would perhaps try, but
considering the limited grounds on which an annulment would be granted,
and the possibility that even if the case could be proved an annulment
would not necessarily follow, it is perhaps not surprising that few couples
bothered. In Chichester, over a period of twelve sample years between 1580
and 1640, there were only two cases (5), and in Wiltshire,
between 1601 and 1640, there were only eight.(6)
In the sixteenth and early seventeenth
centuries, annulment was the only way a couple could completely free themselves
from one another and legally re-marry. For most, however, this was not
an option as their marriage was undoubtedly legally valid, and the presence
of children confirmed that it had been consummated. In these circumstances,
the best a couple could hope for was a "divorce from bed and board". This
would not dissolve the marriage bond, and thus they would be unable to
re-marry, but it would give them legal permission to live apart. Neither
would it effect a wife's dower rights or the legitimacy of her children.
However, there were only two grounds on which this separation could be
granted; adultery or cruelty, and for the wife bringing a case against
her husband, it had to be both. Such narrow grounds again meant that cases
were few. Martin Ingram states;
"...since the most courts could do
to relieve marital unhappiness was to license a separation with no rights
of re-marriage, it is not surprising to find that suits were not very common."
(7)
The double standard came into play. Indeed,
this was a problem generally, and was not really eradicated until the turn
of the twentieth century. A man would be far more likely to win his case
than a woman, even if they were fighting on the same ground. Adultery in
a man was frowned upon, but not nearly as much as it was abhorred in a
wife. If a man could prove beyond a shadow of a doubt that his wife had
been unfaithful, then he would be well on his way to winning his case,
but a wife was expected to put up with her husband's wandering eye, and
would receive a far less sympathetic hearing. She only had a hope of wining
her case if she could prove that her husband was abusing her, and even
then the abuse had to be excessive and life threatening as a man had the
legal right to chastise his wife. Probably as a consequence of this bias,
few cases were initiated by women. The Boteler case of the seventeenth
century shows just how difficult it could be for a woman to secure a separation.
In this case, it took the ecclesiastical courts three years to agree to
a separation with sufficient alimony for Lady Anne Boteler, despite overwhelming
evidence of physical and mental abuse, and even when her husband's own
family were supporting her. However, it must not be assumed that the man
had an easy time winning his case, on the contrary, much evidence was needed,
and even then it did not naturally follow that a separation would be granted.
Also proof was difficult to obtain. It would be necessary to have sufficient
witnesses, and not only were they often difficult to find, but they could
also cost money as they would be unlikely to give a free testimony, or
would have to be bribed to perjure evidence.
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)
BIBLIOGRAPHY
1. S. D. Amussen,
An
Ordered Society (Oxford, 1988)
2. B. Hill, Eighteenth-Century
Women: An Anthology (London, 1984)
3. R. Houlbrooke (ed.),
English
Family Life (Oxford, 1988)
4. M. Ingram, Church
Courts, Sex and Marriage (Cambridge, 1987)
5. N. H. Keeble, The
Cultural Identity of Seventeenth-Century Woman (London, 1994)
6. R. Phillips, Untying
the knot (Cambridge, 1991)
7. L. Stone, The
family, Sex and Marriage in England 1500-1800
(Hammondsworth, 1977)
8. L. Stone, Road
to Divorce (Oxford, 1990)
9. L. Stone, Broken
Lives (Oxford, 1993)
10. K. V. Thomas,
"The Double Standard",
Journal of the History of Ideas, XX. (1959)
11. K. Wrightson,
English
Society 1580-1680 (London, 1982)
ENDNOTES
1. W. Gouge, "Of Domesticall
Duties" (1622) in N. H. Keeble, The Cultural Identity of Seventeenth-Century
Woman (London, 1994) p.153.
2. M. Ingram, Church
Courts, Sex and Marriage (Cambridge, 1987 ) pp.144-145.
3. H. Smith, "A Preparative
to Marriage" (1591) in N. H. Keeble, Op. cit. p.137.
4. "The Counsellor's
Plea for the divorce of Sir G. D. and Mrs.F" in B. Hill,
Eighteenth-Century Women:
An Anthology (London, 1984) p.114.
5. M. Ingram, Op.
cit. p.172.
6. Ibid. p.174.
7. Ibid. p.181.
8. L. Stone The
family, Sex and Marriage in England 1500-1800 (Hammondsworth,
1977) p.34.
9. R. Phillips, Untying
the knot (Cambridge, 1991) p.83.
10. K. Wrightson,
English
Society 1580-1680 (London, 1982)p.100.
11. R. Houlbrooke
(ed.), English Family Life (Oxford, 1988) p.118.
12. R. Phillips, Op.
cit. p.34.
13. "Newgate Calendar,
1774" in B. Hill, Eighteenth-Century Women: An Anthology (London,
1984)p.117.
14. L. Stone, Broken
Lives (Oxford, 1993) p.22.
15. B. Hill, Op. cit.
p.118.
16. "Jackson's Oxford
Journal" (4 August 1770) cited in B. Hill, Ibid. p.120.
17. M. Ingram, Op.
cit. p.145.
ESSAY BY HEATHER THOMAS
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