I was recently tracing a family member and fell down a bit of a black hole finding out about divorce after coming across the phrase “petition for restitution of wife’s conjugal rights”.
This post is just me trying to get straight in my head about how divorce worked back then. I’m sorry if this is already common knowledge for most people. It may give some insight into relatives who divorced.
The back story to this is that I was tracing a DNA match and it became apparent that the man named on her mother’s birth certificate could not be the father (ie the grandfather of my DNA match) – the reason being that he had died five years earlier!
After ruling out other possibilities we were left with it being her unknown biological grandfather who was the link between us. I did a bit of digging and found a likely candidate who was in the right place at the right time (my great grandfather’s cousin).
The only trouble was that he was married at the time. I thought, just on the off chance that there might have been a divorce, I would check the records. And it turned out that they did get divorced. His wife divorced him on the grounds of desertion shortly after the birth.
Back then there weren’t many divorces at all. According to the ONS, in 1922 there were 2,588 divorces in England & Wales. In comparison, in the 1990s and 2000s there were typically 150,000 divorces every year (although that number has fallen since then as fewer people are getting married in the first place).
So, it was quite lucky to find a record of them getting divorced rather than just them deciding to split up. His wife made two petitions, the transcripts I found on FindMyPast but the actual documents haven’t been scanned so the only way to see the actual documents is to physically go down to The National Archives.
That is where I came across this phrase “wife’s restitution of conjugal rights” and where I fell down a black hole.
.
OK, so a brief history of getting divorced. Before 1857, anything legal to do with marriage was handled by the Ecclesiastical Court. The Ecclesiastical Courts had been concerned to enforce the obligations of matrimony, which included the duty of husband and wife to ‘live together after God’s ordinance’.
However, desertion itself was not a matrimonial offence and the only remedy available to a deserted spouse was to obtain a decree of restitution of conjugal rights which ordered the deserter to return and ‘render conjugal rights’.
It was only if a person failed to return home after a decree that it became an offence. Up until 1813, if the deserter did not then return home then they were excommunicated. Following the Ecclesiastical Courts Act 1813, this was changed to six months imprisonment.
Things then changed with the Matrimonial Causes Act 1857. The Ecclesiastical Court was no longer involved and a new civil court, the Court for Divorce and Matrimonial Causes, was created.
After 1857 the husband could divorce the wife for adultery alone but the wife could not divorce just for adultery unless she could establish some further criteria as well.
These were either that:
- the adultery was with her sister, mother, daughter, aunt etc (but interestingly it didn't count if it was a cousin), or
- he had committed bigamy by marrying someone else while still married to her, or
- extreme cruelty, or
- desertion for two years, or
- committing rape, sodomy or bestiality.
An additional problem then was that newspapers were becoming more and more widely read at this time and court cases were heard in public. Newspapers loved printing all the lurid details.
In fact, Queen Victoria wrote to the Lord Chancellor in 1859 complaining of the reporting in the newspapers:
“to ask the Lord Chancellor whether no steps can be taken to prevent the present publicity of the proceedings before the new Divorce Court. These cases, which must necessarily increase when the new law becomes more and more known, fill almost daily a large portion of the newspapers, and are of so scandalous a character that it makes it almost impossible for a paper to be trusted in the hands of a young lady or boy. None of the worst French novels from which careful parents would try to protect their children can be as bad as what is daily brought and laid upon the breakfast-table of every educated family in England, and its effect must be most pernicious to the public morals of the country.”
[Stephen Cretney: Law, Law Reform and the Family 1998]
I really do wonder what “the worst French novels” were at that time?
.
So, that carried on until the next act, the Matrimonial Causes Act 1884. This did away with imprisoning the spouse who failed to comply with a restitution of conjugal rights decree. Instead this became known as ‘statutory desertion’. This allowed the remaining spouse to apply immediately for a judicial separation decree and, if the other spouse had committed adultery then they can get a divorce decree straight away.
So, for women, it was a two stage process. Make an application for a decree of restitution of conjugal rights. If the husband didn’t come home then that would start the separation, if he had also committed adultery then it started the divorce process.
That was the situation up until 1923 with the Matrimonial Causes Act 1923. This gave the wife the right to divorce the husband for adultery alone. It was no longer necessary for her to first get a decree of restitution of conjugal rights.
.
As I said above, the newspapers back then reported on all the interesting cases. This is a quote from Cretney, Family Law in the Twentieth Century: A History (2003) about one of them from 1882, two years before the 1884 Act:
It seems reasonable to suppose that few petitioners believed they could in this way actually compel an errant spouse to return and that they were motivated more by the prospect of the Court exercising its power to make ‘such order for the payment by the husband of alimony to the wife’ as it thought just. But in 1882 Mrs Georgina Weldon earned her place in the history of law reform:
Mrs Weldon, acting in person, petitioned for Restitution of Conjugal Rights. Her husband at first resisted her claim on the ground that she had committed adultery; but this defence was eventually dropped. The court accordingly granted Mrs Weldon the decree to which she was entitled. The husband—a figure of some prominence in London society—accepted his obligation to support her: he made monthly payments of £500 (perhaps £30,000 in year 2000 values) [and, according to the Bank of England website, that would be about £53k per month in 2026], rented Acton House in Acton Middlesex (at the time a no doubt agreeable West London village) for her to live in, and engaged two servants to attend on her.
But, not unreasonably believing that ‘living together again could only entail certain misery on both of us’, he rejected her entreaties that they should once again live together under the same roof.
Mrs Weldon then applied to the court for a writ of attachment committing the husband to prison for disobedience to the court order.
The President of the Probate Divorce and Admiralty Division of the High Court accepted her argument that a man was legally bound to live with his wife and that his marital obligations were not satisfied by providing a house, servants and financial support for her. The President held that he had no alternative but to issue the writ for the husband’s imprisonment although he made it clear that he felt such a sanction inappropriate.
Cretney suggests that it was this case that actually led to the 1884 Act:
The government reacted swiftly. The Matrimonial Causes Act 1884 was passed through both Houses of Parliament without debate or even an explanatory Government statement and received the Royal Assent on 14 August 1884. The Act abolished the sanction of imprisonment for failure to comply with a restitution decree, and substituted a power for the court to make financial orders.
Mr Weldon was thus spared the necessity of leaving the country to save himself from imprisonment; but for the history of the divorce law the most important feature of the Act was that it gave the wife the right immediately to petition for divorce if her husband had not only committed adultery but also failed to comply with a restitution decree. In this way the ‘Weldon Relief Act’ (as it was apparently called) enabled women to circumvent the policy of the Matrimonial Causes Act 1857 and get a speedy divorce against husbands who had done no more than set up house with another woman.
.
Then, by the early 1920s, the reporting of divorce cases had become very lurid indeed (at least for the time). This led on to reporting of divorce cases being banned. One example was the Russell v Russell case from 1922.
King George V had his private secretary write to the Lord Chancellor on the fourth day of the case in a very similar vein to Queen Victoria (or also that of “Disgusted of Tunbridge Wells”):
“...the King is disgusted at the publication of the gross, scandalous details of the Russell divorce case. His Majesty doubts whether there is any similar instance of so repulsive an exposure of those intimate relations between man and woman..."
King George also didn’t hold much regard for French novels.
The Russell divorce case involved a husband who was a regular cross-dresser and the marriage may never have been consummated. The wife did indeed claim a ‘virgin birth’ and there was much reporting of failed attempts at consummating the marriage.
I don’t know if this is the stuff of a ‘French novel’ or not, but in reporting on the case, the Pall Mall Gazette (11 July 1922 page 2 column 1) referred to a letter that Mrs Russell had written to her husband from Switzerland in 1920:
Darlingest Old Thing,
Your wife is so happy that she is almost bursting with it. You will be furiously jealous, but I can’t help it.
We have done no sports yet owing to the rain, but your wife has a vast following of adoring young men who fight each other for the pleasure of dancing with her. There are Greeks and slim, silky Argentines … also a professional dancer with whom I do tangos every night.
I have four young men in the Oxford and Bucks Light Infantry. They are priceless and so naughty, and so is your wife.
I am so much in love with my Dago young man. His hair is beautifully marcell-waved, his clothes fit him like a glove, and he has a lovely hand.
.
But the case that probably stopped the reporting of divorce cases, except for the bare details of the case, was Dennistoun v Dennistoun in 1925.
Ian Dennistoun was an army officer who married Dorothy Webster in 1910. It was quite the society wedding. The band of the Grenadier Guards played the music. There were plenty of literal Lords and Ladies as well as baronets who attended the wedding.
Shortly after the wedding, a certain General Sir John Cowans approached Dorothy and promised to promote her husband if she would be “friendly” to him. This continued for a decade and her husband was indeed regularly promoted.
Once again, the King was ‘disgusted’ about the evidence in the case being reported. The following year a new act was introduced, the Judicial Proceedings (Regulation of Reports) Act 1926, which basically restricted any reporting of divorce cases to just the bare details of the case (although, this does of course include anything contained in the judge’s judgment).
This law is still in effect today and that is the reason that divorce cases are not reported on in detail. It’s nothing at all to do with the privacy of the couple concerned but all about protecting public morality. Indeed, the long title to the Act spells out its purpose “An Act to regulate the publication of reports of judicial proceedings in such manner as to prevent injury to public morals”.
It is only if a judge specifically makes a direction in a case allowing any evidence to be reported that it can be reported on. This has happened at least once, it was the case of Rapisarda v Colladon ([2014] EWFC 35).
This case involved a huge organised fraud ring to get around Italian divorce law which required a three year waiting period. 180 Italian people all claimed to live at the same letterbox (not even a house) in Maidenhead and started divorce proceedings in England under English law against their spouses who lived in Italy.
This was eventually noticed and all the divorces that had been granted were then voided. In a later hearing the judge allowed the evidence to be reported.
.
So wives were now on an equal footing with husbands, but in each case it was necessary to show adultery in order to get a divorce. This led to the rise of the ‘hotel divorce’.
As today, the great majority of divorce cases were undefended; and, in many, husband and wife were both anxious to bring their marriage legally to an end. So the practice developed of a party providing a confession that they had committed adultery.
This would be accompanied by evidence of what had happened. It was a charade played out in front of the chambermaid or private inquiry agent who then gave evidence of events which would enable a judge, who either was or affected to be, credulous, to find that adultery had been committed. Even though the services provided by the unnamed woman found in the respondent's bed when breakfast was taken in usually did not include the sexual intercourse which was, as it remains, essential to the act of adultery.
In the 1930s the ‘hotel divorce’ became a matter of major concern, and this was a factor in the movement which eventually led to the Matrimonial Causes Act 1937. This Act widened the grounds on which a divorce could be granted.
But, even then, some women did still seek a restitution of conjugal rights. The reason for this is that the court would then be able to make a maintenance order in her favour.
Then came the Matrimonial Causes Act 1950 which gave her the right to seek a maintenance order simply on the ground of her husband’s wilful neglect to provide reasonable maintenance for her or the children. It was only after this in 1970 that the remedy of restitution of conjugal rights was finally abolished by the Matrimonial Proceedings and Property Act 1970.
.
So, that’s what happened to the restitution of a wife’s conjugal rights.
However there was still the issue that a divorcing couple need to have grounds for doing so.
Up until 2022 there was no such thing as a "no fault" divorce. Anyone wanting to get divorced (other than separating for five years) had to give reasons as to why and show why they could not live with their spouse.
This led to a charade not entirely unlike the 'hotel divorce'. Divorcing spouses would agree on acceptable, very bland, wording for the 'unreasonable behaviour'. As long as the case was not defended, the divorce petition would then go through automatically.
Then, the Divorce, Dissolution and Separation Act 2020 came into effect on 25 June 2022 providing 'no fault divorces'. It also got rid of all the old terms like "decree nisi" and "decree absolute" etc
This was prompted by a fascinating divorce case (Owens v Owens) that went all the way to the Supreme Court.
Mr and Mrs Owens married in 1978 and Mrs Owens then filed for divorce in 2015 (she was then 65 and he was 77).
Quite unusually, Mr Owens decided to defend the case. The judge at first instance held that there was not sufficient evidence to grant a divorce and so it went to the Court of Appeal.
It is plain from his judgment that Judge Tolson was unimpressed by the wife’s petition. He variously described it as “hopeless” (judgment, paragraph 2), “anodyne” (paragraph 7), and “scraping the barrel”…
This was heard by Sir James Munby (then President of the Family Division), Lady Justice Hallet and Lady Justice Macur.
The court reviewed the authorities and came to the same decision. They said that their hands were tied.
At paragraph 2 the question was explicitly asked:
"If, for whatever reasons, we find ourselves unable to interfere, the question inevitably arises whether, in 2017, the law is in a remotely satisfactory condition?"
https://www.bailii.org/ew/cases/EWCA/Civ/2017/182.html
The case then ended up at the Supreme Court. But here again, the Court said that it could not interfere despite the changes in attitudes in society. But ended with the sentence:
"Parliament may wish to consider whether to replace a law which denies to Mrs Owens any present entitlement to a divorce in the above circumstances."
Then, two years later in 2020, a new Act was passed which eventually came in to force in 2022 making this happen.
.
Sorry that this got so long, it all just came from me falling down a black hole about conjugal rights.