Divorce Records in England and Wales after 1858

Legal Records Information 44

J 77/3272/9998, Divorce and Matrimonial Causes File, 1931-1934

Contents

1. The courts
2. Certified copies of decrees nisi and absolute
3. Case files: survival rates and search tips
4. Abbreviations in the catalogue
5. Investigations into collusive divorces
6. Grounds for Divorce
7. Annulments
8. Judicial Separartion
9. Restitution of Conjugal Rights
10. The National Archives' Library Bibliography

1. The courts

From 11 January 1858, the new secular Court for Divorce and Matrimonial Causes heard all divorce and matrimonial cases, such as restitution of conjugal rights and legitimacy. (In 1873 it became part of the Probate, Divorce and Admiralty Division of the Supreme Court of Judicature.)

Although divorce was no longer the exclusive province of the very wealthy, it still involved considerable expense, so the poor were effectively excluded. The very poor could sue without payment of fees ‘in forma pauperis’ if they could prove their lack of means. The real opening of divorce to all classes did not take place until the 1920s, with the extension of legal aid, and the provision of some local facilities. In 1922, ten assize towns were named as suitable for the hearing of certain kinds of divorce. From 1927, petitions could also be filed in 23 district registries instead of solely at the Principal Registry in London, while cases could be heard in 18 assize towns as well as in London. This option proved increasingly popular: within 10 years nearly a quarter of all suits were started at district registries of the Supreme Court. The county courts were finally able to hear divorce suits in the late 1960s. Most divorces now take place at county courts.

A divorce normally took about 18 months to go through the procedure, from the initial filing of a petition to the granting of a decree absolute. In the meantime, a decree nisi was granted when the court was satisfied that the grounds for the divorce had been proved. This was conditional: the parties were not free to re-marry until the decree absolute was granted, usually six months after the decree nisi.

2. Certified copies of decrees nisi and absolute

If you need legal proof of a divorce in any court in England and Wales, from 1858 to the present day, contact the Principal Registry of the Family Division, Decree Absolute Section, First Avenue House, 42-49 High Holborn, London WC1V 6NP tel: 020 7947 7017 web: http://www.hmcourts-service.gov.uk/infoabout/family/index.htm. For a fee, they will access their union index to the decrees for you, and either provide a certified copy of the information themselves (if the divorce was granted by the Supreme Court) or arrange for a certified copy to be sent to you from the relevant county court. If the divorce took place within the last 5 years, you can also contact the county court where it took place for a cheaper service. If you want information on the cause of the divorce, ask for the decree nisi as well as the decree absolute. Guidance and an application form can be found at: http://www.hmcourts-service.gov.uk/courtfinder/forms/d440_e.pdf

3. Case files: survival rates and search tips

The Principal Registry contains only the decrees granting a divorce, but many people sued unsuccessfully for a divorce. For each suit, whether successful or not, case files were created, containing the original petition and response, relevant marriage and birth certificates, court process, copies of decrees (from about 1870 onwards) and sometimes evidence. Very few survive after 1937. Case files are now destroyed 20 years after the divorce. If you are within the 20 year period, you can apply to the relevant court for permission to see the file.

Surviving case case files can be seen at The National Archives, in J 77 (which is searchable online by name).

4. Abbreviations in the catalogue

There are abbreviations in catalogue entries for J 77 composed of H for husband's and W for wife's, plus further letters indicating the type of petition, as given in the original index in J 78 :

Abbreviation Explanation
D divorce
JS judicial separation
N nullity
RCR restitution of conjugal rights

You may also find:

Abbreviation Explanation
Legit Petition for declaration of legitimacy
Prot Application for order for protection of wife's earnings and property
Div Ct Appeal to Divisional Court from Magistrates Court: failure to pay maintenance on separation orders

We have included these for researcher who wish to search by type of petition. We have also created WX and HX for the early case files where the type of petition was not given in the original index in J 78 .

5. Investigations into collusive divorces

In cases of suspected collusion or deceit, investigations were made and decrees could be overturned. Registers of divorce cases investigated by the King's or Queen's Proctor, from 1875, are in TS 29 : they are closed for up to 75 years.

6. Grounds for Divorce

Until 1971, divorces were granted on the basis of the bad behaviour of one or other party. Divorce by mutual consent was not allowed, and if the parties colluded to obtain a divorce, the court would refuse to grant it. A man could divorce his wife for adultery, and she would not be entitled to any maintenance, as a consequence of her bad behaviour. The husband might even sue the other man for damages, and for the costs of the suit.

Until 1923 a wife had to prove her husband’s adultery, along with some other offence, to gain a divorce. This could be cruelty, or desertion for two years or more. She could also divorce him on the grounds of incestuous adultery; where he committed adultery with a woman that he could not legally have married, if his wife were dead. This would include his wife’s sister, or half-sister. Marriage to a deceased wife’s sister was forbidden until the Deceased Wife’s Sister’s Marriage Act of 1907, but this Act contained wording that still expressly forbade marriage to a divorced wife’s sister or half-sister while the divorced wife was still alive. The Deceased Brother’s Widow’s Marriage Act of 1921 contained a similar clause, so that a man could not marry his brother’s ex-wife during the brother’s lifetime.

7. Annulments

Petitions for nullity or annulment of marriage were relatively rare. If a decree of nullity was granted, it was as though the marriage had never taken place. This could have serious implications for any children born of such a marriage, who would be deemed illegitimate. A decree of nullity could be granted on four grounds:
Impotence, provided the condition existed before the marriage and was permanent;
Absence of Consent, where consent had been obtained through fraud or coercion, or insanity of one of the parties at the time of the marriage;
Breach of Statute, where the parties were within the prohibited degrees of relationship, or where one or both had not been free to marry at the time of the marriage this would include cases where a divorced person re-married before they had obtained their decree absolute;
Bigamy, in which case the injured party had to prove that the first marriage was valid

8. Judicial Separation

Some petitions were for judicial separation rather than divorce, on the grounds of adultery, cruelty or desertion. In such cases the parties were not free to re-marry, but gained some legal protection; the wife’s property and earnings from the time of the separation were protected, and she could be awarded alimony; the husband would no longer be liable for any debts incurred by his wife. A wife might gain a separation on the grounds of desertion if she had been obliged to leave the home because of her husband’s misconduct, for example if he were an habitual drunkard. It did not, however, constitute desertion if a husband’s occupation required him to be absent from home for long periods, for example if he was a soldier or sailor.
From 1878 local magistrates could grant separation and maintenance orders to the wives of violent husbands, and from 1886 a husband who deserted his wife and children, or refused to maintain them, could be ordered by the magistrates to pay up to £2 per week. Some Poor Law authorities required deserted or abused wives to obtain such orders before granting them relief.

A separation might be obtained where there were insufficient grounds for divorce, or the petitioner had religious or moral objections to a full divorce.

9. Restitution of Conjugal Rights

A petition might be made for restitution of conjugal rights, where one party had withdrawn from cohabitation without good cause. The absent party could be served with an order to return, and if they refused, this was deemed to be desertion and contempt of court, and the injured party could then petition for an accelerated divorce.

10.The National Archives' Library Bibliography

The following recommended publications are available in the The National Archives' Library. Where indicated a publication is also available to buy at The National Archives' Bookshop.

• Amanda Bevan, Tracing Your Ancestors in the National Archives (7th edn, Kew, 2006) - Available to buy
• Roderick Philips, 'Divorced, beheaded, died…', History Today XLIII (1993), 9-12
• Griselda Rowntree and Norman H Carrier, 'The resort to divorce in England and Wales, 1858-1957', Population Studies XI (3) (1958), 188-233
• Lawrence Stone, Road to divorce: England 1530-1987 (Oxford, 1990), 383-416
    

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