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Marriage and Divorce 19th Century Style

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Both of my parents were prodigious readers.  My father, the physicist, read histories, biographies, dictionaries, and the occasional mystery.  My mother read “literature.”  I remember Henry James and Jane Austen as two of her favorite authors, with W. Somerset Maugham as light relief.  I have inherited their passion for reading and last summer indulged my literary geek heart out by attending Dickens Universe.  The final seminar I attended at Dickens Universe involved an extensive discussion of the fallout from one of the several unhappy marriages in George Eliot’s Middlemarch, specifically that of Rosamund and Lydgate.  Rosamund is unhappy in her marriage with a husband who has been unsuccessful professionally and now is in debt.  She has been fantasizing about the novel’s hero, Will Ladislaw, and in a muddled way looks to Will to rescue her from her unhappiness, though it is unclear how he could rescue her without causing shame and scandal.  Thus results one of the tragedies of this novel set in the 1830s–the unhappy marriage in which Rosamund and Lydgate find themselves has no lawful exit.

At the time this novel is set, English law held that when a woman was married, she became, in a sense, her husband’s property.  This common law doctrine was known as coverture, and allowed a married woman’s legal identity to be subsumed in her husband’s.  William Blackstone, in his Commentaries on the Law of England, recognized husband and wife as one person in the law and that person was represented by the husband.  Practically speaking, this meant a woman could not enter into a contract or write a valid will without her husband’s consent.  A husband also gained rights to his wife’s property, both real and personal.  Until the 1857 Matrimonial Causes Act, it was essentially impossible to obtain a divorce, no matter how bad the marriage or how cruel one’s husband.  A couple could only be divorced by the passage of a private act through Parliament–remedy available only to the very wealthy.  According to Feminism, Marriage and the Law in Victorian England, 1850-1895, about ten private acts for divorce were passed in Parliament each year.

A rather chilling example of what this could mean for a wife can be seen in Charlotte Bronte’s novel Jane Eyre.  Mr. Rochester has determined his wife is mad, locked her up, and taken control of all of her property.  As the novel is written, we are not inclined to be particularly sympathetic to Mrs. Rochester, who sets fires and bites people.  It seems likely that she is mad and should not be allowed out into society.  However, it is not a board of doctors or a court which has ruled on her condition and treatment, but rather her husband alone who has decided to hide her away.  Although the novel questions Mr. Rochester’s judgment in attempting a bigamous marriage with Jane, no one very seriously questions his legal right to dispose of his existing wife as he chooses, much less her property.

The somewhat less severe consequences of a bad marriage are illustrated in Anne Brontë‘s novel, The Tenant of Wildfell Hall.  In this novel, the “tenant” is a woman under an assumed identity who has fled her husband.  The supposed widow, Helen Graham, along with her young son, takes up residence at Wildfell Hall.  As a strange woman in a small town, she quickly attracts gossip from other jealous women in the town.  The novel’s narrator, Gilbert Markham, falls in love with Helen and is jealous of her.  As an explanation for her refusal to marry him, Helen gives Gilbert her diaries, which chronicle her life as the wife of an abusive drunkard who has affairs with her friends and finally tries to corrupt their young son, urging him to drink and swear at five years old.  The Tenant of Wildfell Hall is set in the decade before Middlemarch.  When Helen flees her husband in 1827, she is breaking the law and depriving her husband of his property–herself and their son.

Black and white engraving of Caroline Norton, with her name written on the bottom.
Caroline Norton / Engraving by H. Robinson after T. Carrick. Library of Congress, Prints & Photographs Division,

Lest you think these novels were overwrought, Caroline Norton, a writer and social reformer, had a story which rivals that of most fictional heroines.  Caroline married George Norton in 1827, and the marriage was marked by his outbursts of violence.  Finally, in 1836, George removed their three children to another house and barred Caroline from entering.  He then sued Lord Melbourne for “criminal conversation” with his wife–this essentially meant that he was accusing Lord Melbourne of alienating his wife’s affections and committing adultery with her.  Although George quickly lost the case, the Norton marriage could not be dissolved and George could continue to deny Caroline access to her children.  Caroline helped advocate for the passage of the 1839 Custody of  Infants Act, which granted mothers custody of children under the age of seven and access to children under the age of sixteen.  Tragically, one of Caroline’s children died in an accident before her husband would allow her to see them.

By the 1850s, these problems led Parliament to consider legislation to amend existing divorce law, including the establishment of a court to hear divorce cases.  Mary Lyndon Shanley, in Feminism, Marriage and Law, notes that the debate in Parliament reflected the reluctance of members “to curtail the sexual adventures of men of their own class,” but at the same time, their considerable concern that making divorce easy for the lower classes would lead to unbridled immorality.  Because of this concern, the Matrimonial Causes Act only established one court in London that could grant divorces and continued to make divorce unavailable to many people throughout England.  Parliament was also unwilling to grant equality to the sexes on the grounds for divorce.  A man could divorce his wife for one instance of adultery but a woman could only obtain a divorce if her husband was physically cruel, incestuous, or bestial in addition to being adulterous.

Moreover, if a woman left her husband before obtaining a divorce, she lost all claim to any property, even that which she brought to the marriage, as well as custody of the children. Later amendments to the bill provided some relief to women who had been deserted by their husbands by recognizing them under the law as femme sole; however, the law failed to address the issue as to whether a wife in an ongoing marriage had any right to her property.  A married women’s property bill had also been introduced and debated at the same time as the divorce bill, but as Shanley notes, “very few Members of Parliament believed two independent wills could exist in one household without inviting disaster” and thought that allowing a woman to control her own property would lead to the complete breakdown of family life. Neither the 1870 nor the 1882 Married Women’s Property Acts granted a married woman recognition of her own legal identity (femme sole), even though both laws granted married women more control over own property.

As such, the unhappy wives in these novels, and in real life, were forced to be unhappy for most of the 19th century.

Comments (13)

  1. Excellent coverage of the subject. Other treatments of the effects of an unhappy marriage on women in the 19th century in classical literature include Hardy’s Return of the Native as well as Hawthorne’s A Blithedale Romance. It didn’t turn out very well for either heroine. Thanks for bringing up Anne Bronte. I just finished reading her Agnes Grey.

  2. Fascinating!

  3. Very interesting indeed. And sad. However, it brings another question for me :). Do you remember lady Catherine de Bourgh from Pride and Prejudice? Her daughter was supposed to inherit the estate, etc. Does this mean that after marriage, she wouldn’t be able to keep it? Even if it is inherited through female lineage? Sorry, your article really made me curious 😀

  4. Hello,

    I had a question regarding the 1839 Custody of Infants Act. Did the mother automatically get custody of children younger than seven, or did the father receive automatic custody and the mother could petition for custody? I was wondering because other credible sources are saying something different.

  5. What an interesting article. I came across it whilst looking for background information into my family tree. My 3X great grandfather was sentenced to 7 years deportation to Australia in 1829. he never returned and remarried whilst he was in Australia. It also looks like my 3X great grandmother who was left in England with 4 children to look after also remarried. Neither would have had the resources for a private Act of parliament so presumably both remarriages would have been bigamous. I wonder if this was very common?

  6. My paternal gggrandfather was also transported to Australia for 7 years in 1845 and never returned to the wife he left behind in England. The couple’s only child died before he was transported. He remarried in Australia and fathered eleven children. Interestingly his wife in England was still using her married name at the time of the 18521 census but had reverted to her maiden name and described herself as a widow (which was not the case) by the time of the 1861 census. She later remarried even though her husband was still alive in Australia.

  7. This was a very helpful article! Having spent many years studying the era, reading Victorian novels and listening to stories of my own grandparents, my belief is that people often did separate, move away, and “remarry“ other people even though their original spouse was still alive. They often tried to bury information about their original marriages or simply prayed they would never be found out. If they moved to a different country, they would often characterize themselves as widows or widowers. What other choice did they really have?

  8. Part of the villainy of Wickham in trying to elope with Georgiana Darcy is that this would prevent legal arrangements from being made before the marriage. Such arrangement were called a ‘settlement’ and would protect her property.

  9. This article backs up what I have read in many Victorian novels, especially John Galsworthy’s *The Forsyte Saga*. It also explains the great lengths that Irene (long- suffering wife of Soames Forsyte) goes to to rid herself of him and ironically, how difficult it is for him to finally divorce her, even though she openly shows her adultery. His sister Winifred, deserted by her husband, is advised to beg him to come back (!) in order for divorce to be likely, but, since he actually returns, she decides to “keep him” since it looks better to society. Marriage in those days was not a good deal for many women!

  10. My understanding is that the first divorce granted to a woman was that of Lady Louisa Jane Moore Morgan Westropp of Kilworth, Co. Cork, in 1886 through the House of Lords.
    However according to “Feminism, Marriage and the Law in Victorian England, 1850-1895”, noted above, “about ten private acts for divorce were passed in Parliament each year.” Does this suggest that Lady Morgan Westropp’s divorce was not the first?
    Many thanks,
    Noel Howard.

  11. Actually you are factually wrong on Mr Rochester. The doctors declared her mad, not Mr. Rochester and had her locked up. He saved her from her mother’s fate, an asylum, would not use violence and had her housed in comfort and care. Her rooms were rather large.
    She was violent and criminal in nature and had porphyria.
    By modern standards it’s a horrible fate, by 1800 standards it was the height of care.

  12. Fascinating discussion – would love to know more about the Lady of Cork in 1886 – I have an actress (as they were known), who married in 1880, had two children but in 1886, the husband ran off to Canada (eventually to join and fail in the gold rush). She then became the kept (in Kensington) mistress of a wealthy businessman from Manchester, had a son by him (christened under HER married name in 1889) but two years later got pregnant again. This time, the first son was renamed under HIS name and they got married just after the second son was born (1891). Their marriage is cited in Burke’s under a false date (were married in 1887) to legitimise the first sone of the second marriage but something like a divorce or an annulment must have taken place for them to have got married. at all The two years it took suggests quite a rapid resolution (decree). Where do you look to establish how such a thing can be achieved?

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