1. Why use this guide?
This guide will explain the ways in which people sought to end marriages before the 1857 Matrimonial Causes Act, which marked the beginning of modern day divorce.
You may find it useful to read the research signpost on divorce if you have not already done so.
2. Essential information
Until the English Reformation in the sixteenth century, a valid marriage could only end if one partner died, or if the Pope granted an annulment.
Marriages could be 'set aside' if it could be proved they had never been valid, but it wasn't until 1857 that a divorce law was introduced in England. Even then, divorce was only within reach of the rich and influential until well into the twentieth century.
In practice people in unsatisfactory marriages found various ways to separate - through custom, the church courts, the common law courts and Parliament.
There were five main methods:
- private separation
- desertion and elopement
- wife sale
- declaration of nullity, annulment or divorce a mensa et thoro by church courts
- full divorce by Act of Parliament
3. Deed of separation
Sometimes a couple would draw up a deed of separation which made provision for the children and the wife. The deed would be drawn up between the husband and a trustee of the wife rather than the wife herself, as in law she was not an individual in her own right.
By 1730 the deeds were of a fairly standard form and if one party failed to keep to the agreed terms, the other could present a petition to the court of Chancery.
Deeds of separation continued to be used even after the Matrimonial Causes Act of 1857 as couples were still unable to end a marriage simply because of incompatability.
If you know the names of both parties you might find a deed of separation in the Close Rolls in C 54. With names and an approximate date, you can also search for petitions to Chancery in the various C series.
There may also be records of the deed and correspondence amongst family or estate records. Search the National Register of Archives to see where different collections are held.
4. Desertion
If little or no property was involved, desertion was often the simplest solution to a marriage breakdown. Neither party could marry again legally, although some did so bigamously.
A deserted wife was the legal responsibility of the parish and she could apply to them for relief under the poor law. These applications can sometimes be found in papers from the quarter sessions at local archives.
5. Wife sale
Some marriages were based on an informal contract and could be ended equally informally with a wife sale. This was a form of public separation which took place on market day, usually with pre-arranged bidding. The wife sale represented a symbolic transfer of person, property and responsibility.
There were sometimes deeds of sale but very few of these survive. Local archives may have reports of wife sales in records from the quarter sessions and local newspapers.
6. Declaration of nullity, annulment and divorce a mensa et thoro by church courts
6.1 Declaration of nullity
The church (consistory) courts of the bishops could grant a declaration of nullity meaning the marriage was considered invalid from the start. This meant the children became illegitimate and the wife lost her entitlement to a third of her husband's personal property on his death (rights of dower). Records of the consistory courts are kept in local archives.
6.2 Annulment
An annulment was a form of legal separation which protected the wife's rights and kept the children legitimate, but neither party could remarry unless the other died. The husband or wife could subsequently apply to the church court for a declaration of nullity.
6.3 Divorce a mensa et thoro
A divorce a mensa et thoro (literally meaning from bed and board) was a legal separation and was granted on the grounds of adultery and/or life-threatening cruelty.
The decree rolls of Chancery in C 78 were used to record:
- divorce a mensa et thoro
- disputes over property rights and settlements made at the time of separation
- church orders directing payment of money as maintenance (these could be enrolled up to six months after being made)
This made them a matter of legal record. Some separation settlements can also be found in PC 2 indicating that the Privy Council had an interest in ensuring they were adhered to.
6.4 Appeals
First appeals could be heard at the Archbishop's court at Canterbury or York and further appeals were to the High court of delegates up to 1834 and the Judicial committee of the privy council between 1834 and 1858.
On appeal, the case would be suspended in the lower court, and transcripts of all the records transferred upwards. The table below shows where records are kept for each court.
| Appeal court | Where to find records |
| Province of Canterbury's Court of Arches | Lambeth Palace Library |
| Consistory court of York | Borthwick Institute of Historical Research |
| High court of delegates | The National Archives in DEL 1, DEL 2, DEL 7 |
| Judicial committee of the privy council | The National Archives in PCAP 1 and PCAP 3 |
The main series of cause papers, which include allegations and petitions are in DEL 2. 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
- 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 motions for hearing
- a copy of the citation
The early papers are often in Latin, with occasional depositions in English. Most of the material is in a standard legal form, but there are sometimes personal details about the parties. The accounts of proceedings can sometimes run to hundreds of pages.
The case books in DEL 7 (1796-1834) and PCAP 3 (1834 onwards) contain bound volumes of printed proceedings and sometimes manuscript records of the judgement given.
7. Criminal conversation (crim. con.)
The husband of an adulturous wife could take out a civil suit of criminal conversation in the court of King's Bench or Common Pleas in order to claim damages from his wife's lover.
The proceedings would begin after or at the same time as a divorce a mensa et thoro and was a prelude to a private bill for a full divorce by Act of Parliament. 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.
Some reports of sensational trials found their way to the newspapers from the late eighteenth century. Many trials were covered in some detail by The Times.
8. Full divorce by Act of Parliament
Before 1858 divorce in the modern sense where both partners were free to re-marry, was rare and expensive and focused on protecting the husband's property from being inherited by an adulterous wife or any further children she might have.
Fewer than 300 such divorces were granted, and only 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 89/15/20-21.
