Divorce is a relatively recent "invention". Historically, it can be traced back to at least Roman times, but it was not a part of the Celtic tradition in the Anglo-Saxon tribes, nor in the Danes or Normans who later settled in Great Britain.
The tradition is that a man and a woman elected to be married when they moved in together. It was their decision to marry, and it was not forced by parents, the local lord or the church. But marriage was "forever". This is what most of us mean when we refer to a "Common Law Marriage." When Christianity came along, the church provided some structure by hosting the wedding ceremony and blessing the union.
For men, getting a woman pregnant was considered the same as asking her to marry you. Which is why you will find many girls having the first child only a few months after the public wedding.
The Feudal System needed to prove "birthright" for inheiritance, so baptisms were later recorded in the church registers, as well as marriages.
What if your marriage proved to be a mistake? See the Legal History section below for details on some of these points. But what were your options?
Judicial Separation - People often talk about a "legal separation" without necessarily being too precise about what exactly they mean. The phrase may be just an euphemism for divorce, sometimes it means that they want to live apart from their spouse and sometimes it can mean a separation which is more formal than simply living apart but which falls short of divorce. In fact, there is a remedy available from the family courts called a "decree of judicial separation". This is not a divorce and the parties remain married but, in effect, all the normal marital obligations come to an end.
A decree of judicial separation can be granted for any of the grounds which would justify a divorce - unreasonable behaviour, adultery etc - but it is not necessary to prove that the marriage has irretrievably broken down. The court can exercise all the powers which it has to divide the matrimonial property just as it can in the case of a divorce. For most people divorce would be a much better choice because judicial separation does not really allow people to move on.
We often find that Legal Separation is chosen over Divorce when one of the parties has a religious objection to divorce.
Some people opt for a "Trial Separation", which is not a legal entity. If the two spouses agree on child care and financial issues, there is no legal protection if one spouse violates the agreement. And both are still bound by the laws of marriage. People who consider a Trial Separation should document their child custody and financial agreements with an attorney (solicitor) in a "Deed of Separation".
Desertion (Abandonment) - This was not a legal action. It is recognized today as the grounds for a divorce, but a spouse who abandoned his or her family in the past could be arrested and brought back. You may be able to find Poorlaw records where an abandoned wife has petitioned for parish relief (money or other assistance). A deserted wife became chargeable to the parish instead of her husband. A "found" husband might then be fined.
Unfortunately, abandonment appears to have been the common choice amongst the poor.
Divorce - Prior to 1670, you could only get a divorce if you could prove to the church (ecclesiastical) courts that your marriage never happened legally in the first place. The courts followed canon (religious) law. The normal reasons for divorce were insanity, heresy, consanguinity and impotence. Some people believe that divorce could be granted to just one party without the spouse's knowledge, but that has never been the case. The spouse is always notified of the intent and can challenge the divorce or consent to it. The Pope was the ultimate authority on granting divorce.
King Henry VIII, in 1533, is likely the most notorious divorce. This was granted by the head of the Church of England, the Archbishop of Canterbury.
Prior to 1670, England was the only European Protestant country to have no divorce law in their legal system.
In 1670, English law allowed a spouse to bring an action for "criminal conversation" to establish adultery, then obtain a divorce a mensa et thoro (from bed and board) from the church and then finally to petition the House of Lords to grant the divorce.
Hardwicke's Marriage Act of 1753, set aside the old Common Law marriages and required a wedding in an approved church or chapel.
In 1857, the Court for Divorce and Matrimonial Causes, based in London, was established, taking the divorce duties away from the church courts. Men could obtain divorce for adultery, but women had to prove cruelty or desertion, in addition to their husband's adultery. In 1923 women were allowed to use the same grounds for divorce as men.
In 1969, divorce laws were modernized and the term "irretrievable breakdown" was introduced to allow divorce. Divorce begins with the issuing of a petition, which must be acknowledged by the other party. It is possible to defend against a divorce, but the vast majority proceed on an undefended or unchallenged basis. It is extremely difficult to defend (object to) a divorce petition successfully.
The Matrimonial Causes Act of 1973 has further defined divorce and how financial issues are dealt with. Additional legal issues are covered under the Marriage Act of 1949.
The Family Law Act of 1996 proposed significant changes in the way divorce and separation would be handled in England and Wales. Although most of the provisions of the Act, including a new no-fault divorce procedure, have never been implemented, one effect of the changes that have taken place has been to place mediation on the same level as courts as a forum for resolving divorce and separation disputes.
Divorce, as it has now evolved, has two legal decrees. The first is a legal announcement of the decision, allowing either party to petition the court if there is new evidence. The second is the "Final Decree", which means that the divorce is legally finished and granted and the parties are free to move on (remarry, etc.). The "Final Decree" is called an "Absolute Decree" by the legal system.
Nullity (Annulment) - Consistory courts (of Anglican bishops) could grant a declaration of nullity rendering a marriage void from the onset. These were harse, as any children of the marriage would be rendered illegitimate and forfeit inheritance. As well, the bride lost her rights to property from the marriage.
Wife Sale - Has never been legal in the UK. But that hasn't prevented it from happening.
Appeal by the parish of Spalding against an order of removal of three children from the parish of Skirbeck. "John Forman, the legal father of the children proved...his having gained a settlement in Spalding; and further deposed that the reputed mother of these children, Prudence Forman... was his wife; that he sold her, about 17 years ago, to... J. Holmes, for five guineas; and that he had not since cohabited with her...
Their three children were all in court; the eldest was little more than 12 years of age. Authenticated registers of baptism for these children were produced... they had been baptised by different names; the eldest, at Boston church, as the son of Josh. and Prudence Holmes, alias Forman; the second, at the same church, as the son of Prudence Forman;and the third, at Skirbeck church, as the son of Joseph and Prudence Holmes. Evidence was adduced of these children living with and being considered...as the children of...Prudence Forman, and of their also living with, and frequently being called, Holmes...Mr Carter, of Spalding... insisted that Forman having sold his wife, and ceased to have intercourse with her long antecedent to the birth of any of these children...there could be no pretence for considering them as his children;...that they must ...be taken to be the children of Holmes, the purchaser of the wife,...
On the part of the respondents, ...Mr Hollway...ably argued their case... to show that children born in wedlock must be taken to be those of their legal parents...that the law presumes access between man and wife; that the sale of the wife by the husband was a scandalous action, detrimental to the morals of society, and could not be set up as a bar against the children's right of settlement; and that it would be monstrous to admit of a husband's coming forward to bastardize the issue of his own wife. The order of removal was confirmed."
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