Divorce Records Before 1858

Legal Records Information 43

1. A Brief History of Divorce

Until the English Reformation in the sixteenth century, divorces were granted by the Pope. Death was otherwise the only agent for the permanent dissolution of a valid marriage. Marriages found on investigation to be invalid could be set aside (as was the case with Henry VIII).

By the end of the sixteenth century, England was the only European Protestant country to have no divorce law as such. There was no legal change in the law of divorce before 1857. Fundamental changes in practice and attitudes came only in the twentieth century.

In practice, however, various ways were found to separate partners in unsatisfactory marriages, through custom, the church courts, the common law courts and parliament. There were five main methods:

2. Private Separation

The conditions of separation were drawn up in a private deed agreed between the husband and the trustee of the wife (who had no legal personality in common law). They settled into a common form by c.1730, and included provision for children, and some legal safeguards for the wife, the husband giving a bond to provide a maintenance allowance. Deeds of separation may be found enrolled in the Close Rolls in C 54 , although you will need the names of the parties to find them in the contemporary 'indexes' at The National Archives. By the late seventeenth century (and perhaps before) petitions were being presented to the Court of Chancery to try to enforce such deeds against defaulting parties. You will need the names of the parties and the approximate date to trace cases before Chancery in the various C series.

There may also be records of the deed, and family correspondence, amongst family or estate records. These collections are usually held locally. Search the online catalogue for their whereabouts at National Register of Archives (NRA).

The passing of the Matrimonial Causes Act in 1857 did not affect the use of these deeds as the law made no provision for the ending of marriages on the grounds of incompatibility.

3. Desertion

When little or no property was involved this was the simplest solution. However neither party was free to legally marry again, although bigamous marriages took place. There are occasionally applications for relief by the deserted wife among the Quarter Sessions records held locally, as under statute law a deserted wife became chargeable to the parish.

4. Wife Sale

This was a form of public separation, which took place on market day, usually with pre-arranged bidding. Since many of these marriages were based on informal contract, this was a wholly different type of 'marriage' and 'divorce'. It fulfilled the function of providing a symbolic transfer of person, property and responsibility. There could even be a deed of sale, though survival of these is extremely rare. Reports of wife sales may occasionally be found in Quarter Sessions records held locally, and in local newspapers.

5. Declaration of Nullity, Annulment and Divorce a mensa et thoro by Church Courts

Church (consistory) courts of the bishops could grant a declaration of nullity rendering a marriage void from the outset. This had the practical effect of rendering any of the children of the marriage illegitimate, and the wife lost her rights of dower (entitlement to a third of her husband's personal property on his death).

An annulment was a form of legal separation, protecting the children's legitimacy, and the wife's rights. However, neither could remarry during the lifetime of the other. An annulment made the marriage voidable, so either party could subsequently apply to the church court for a declaration of nullity.

A divorce a mensa et thoro (literally meaning from bed and board) was granted on the grounds of adultery and/or life-threatening cruelty. This also was a legal separation.

Many people chose to enrol judicial separations in the decree rolls of the Court of Chancery (C 78 ): this made them a matter of legal record in the common law. The same rolls record disputes over property rights and settlements made at the time of separation. Church court orders directing payment of money as maintenance could also be enrolled up to six months after being made. There are some entered in PC 2 relating to separation settlements where it seems that the Privy Council had an interest in ensuring they were adhered to.

Records of the consistory courts are held locally. There was a right of appeal to the archbishop's court. The records of the Province of Canterbury's Court of Arches are available at the Lambeth Palace Library, and those of the Consistory court of York at the Borthwick Institute of Historical Research. There is a published Index of cases in the records of the Court of Arches in Lambeth Palace Library, 1660-1858, edited by J Houston (Chichester, 1972). Further appeal was to the High Court of Delegates (DEL ) until 1834, and to the Judicial Committee of the Privy Council (PCAP ) from 1834 to 1858. On appeal, the case would be suspended in the lower court, and transcripts of all the records transferred upwards.

The National Archives series references for records of the above appeals are DEL 1 , DEL 2 , PCAP 1 and PCAP 3 .

The main series of Cause Papers, which include allegations and petitions, can be found in DEL 2 , Cause Papers c.1600 to 1834. The papers are arranged by case and term, and consist of bundles of papers relating to each particular case. Details can include: the authorisation of the judges and a formal statement of the terms of the appeal (usually based on faults in the previous legal proceedings, rather than on the intrinsic justice of the case), a note of any appearance by the parties and their statement, the warrants or monitions for hearing and a copy of the citation. The early papers can be in Latin, with occasional depositions in English. A good deal of the material is in a standard legal form, but it is possible sometimes to obtain personal details about the parties concerned. The accounts of proceedings can sometimes run to hundreds of pages.

The Case Books in DEL 7 , 1796-1834, and PCAP 3 , from 1834, contain bound volumes of printed proceedings and also may contain manuscript records of the judgement given.

6. Full Divorce by Act of Parliament

Before 1858, true divorce, freeing both partners to marry, was rare and expensive. It protected the husband's property from being inherited by the spurious issue of an adulterous wife. Under 300 such divorces were granted, and four of the petitioners were women, who besides alleging adultery, had to prove life-threatening cruelty on the part of the husband. The first true parliamentary divorce was in 1670, between John Manners, Lord Roos, and Lady Anne Pierpont, which created a precedent for parliamentary divorces on the grounds of the wife's adultery. Divorce acts are held by the Parliamentary Archives: there are a very few examples in the National Archives, in C 89 and in C 204 . For the Roos case, see C 89/15/20 and C 89/15/21 .

7. Criminal Conversation (crim. con.)

This was a civil suit in the court of King's Bench or Common Pleas, for the recovery of damages against the lover of the adulterous wife. They were commenced before, after or at the same time as a divorce a mensa et thoro in a church court, as a prelude to a private bill for a full divorce by act of parliament. Some reports of sensational trials found their way to the newspapers, both national and local, from the late eighteenth century. Many trials were covered in some detail by The Times. The Times Digital Archives is available in the Open Reading Room of The National Archives. In 1809 the House of Lords ordered that the transcript of a preliminary trial for criminal conversation should accompany every divorce bill brought before it. This suit was illegal in Scotland.

(ri2288) Last updated: 28 June 2004 | © Crown Copyright 2000