Henry VIII & Catherine of Aragon
A difficult divorce.
ESSAYS / ARTICLES
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.
Bibliography & Endnotes