header('Cache-Control: max-age=259200'); A Primer on Regency Divorce and Annulments - Kristen Koster
Oct 182011
 
A cariacture of a wife being "sold" in a public, lower-class "divorce" that was not recognized by church or state.

Last week’s post on Regency Marriages & Elopements, outlined the different ways one could get married during the Regency Era. So this week, we’re going to take a closer look at what happens when there wasn’t a Happily Ever After (HEA). The topic of Regency Divorce and Annulments is a much romanticized one in Regency Romances.

The Lower Classes

The satirical engraving on the right depicts the quaint English custom of “wife-selling”, which wasn’t quite what it sounds like, but was more a ritual among the non-genteel classes (who couldn’t possibly obtain a full parliamentary divorce, allowing remarriage, according to the pre-1857 laws), to publicly proclaim a dissolution of marriage (though not generally recognized by the Church and State authorities). Notice how artist arranged the horns of the cattle horns behind the cuckholded husband’s head.

An 1815 newspaper carried this notice:

Regency Divorce: A cariacture of a wife being "sold" in a public, lower-class "divorce" that was not recognized by church or state.

A satirical engraving of the quaint English custom of “wife-selling”. 1820 English caricature, despite French on the sign.

On Friday last [September 15th 1815] the common bell-man gave notice in Staines Market that the wife of —- Issey was then at the King’s Head Inn to be sold, with the consent of her husband, to any person inclined to buy her. There was a very numerous attendance to witness this singular sale, notwithstanding which only three shillings and fourpence were offered for the lot, no one choosing to contend with the bidder, for the fair object, whose merits could only be appreciated by those who knew them. This the purchaser could boast, from a long and intimate acquaintance. This degrading custom seems to be generally received by the lower classes, as of equal obligation with the most serious legal forms.

High Society

So, let’s examine what was involved to dissolve a marriage in a way that would be recognized by the authorities of Church and State.

There are generally two ways to go about dissolving a marriage: annulment (to make it as it if never existed at all) and divorce (a legal separation in every sense of the word: all obligations of the husband toward the wife are removed and vice versa. Divorce was a long, expensive process—and rarely used outside the aristocracy. Only a handful of cases came before Parliament each year as few could afford the cost. Additionally, the woman became a social outcast and so did the man, though not to the same extent.

Annulments

In many Regency Historical novels, someone frequently threatens to get an annulment. Despite their handiness as a plot device, annulments were difficult to obtain in reality. Marriages must be dissolve through an annulment suit in an ecclesiastical court which is tried by the bishop of the see in which the couple’s parish is located.

Annulments could only be granted in three circumstances, any of which could leave either the man, the woman, or both as social pariahs. Also, any children of an annulled marriage become bastards (who cannot inherit or be declared legitimate at the whim of the peer) and likewise outcasts of society.

Fraud

The first form of fraud related to identity. Marriages could be annulled for use of fictitious names. This could be blatant or subtle by forgetting to list out the entire name or title. In the interest of preserving the marriage, bishops could decide an inadvertent mistake occurred, correct the registration and refuse the annulment. This was especially true if the name on the register was how the person was commonly known.

Fraud also involved promises in the marriage contract that were unable to be kept. More common in fiction than real life, these cases might included vanishing doweries or promises of housing that’s already been sold. One has to assume that due to the rarity of such breach of contract cases, the scandal involved with those that were brought was immense. In even rarer cases, fraud could also be charged if the officiating clergyman allowed irregularities (such as an non-consenting bride).

Incompetence

One is incompetent under law and cannot be held to a contract if the person is underage or insane.

Contracts were null and void if either party had not reached their 21st birthday and did not have their father or guardian’s consent. Many fathers were forced to accept the marriage of underage brides who eloped because otherwise her reputation would prevent anyone else from marrying her and taking her off his hands.

Once proven legally insane, the person is locked away for life and loses control of all possessions. Titles could not be stripped and given away, but guardian were appointed to handle their affairs. Women declared insane became nonentities, locked away and forgotten. Few families brought an annulment suit claiming insanity, as it would taint the entire family. A charge of insanity against a husband was social suicide for a woman as her reputation would be ruined when the marriage ended. The few cases tried on these grounds were brought by men wanting to discard unwanted wives or by family members seeking to control the man’s assets.

Impotence

Non-consummation was NOT grounds for annulment as is conveniently if erroneously used in many novels. The proof is burdensome and difficult to acquire at best and leaves the man an outcast. To prove impotence, the man must share his wife’s bed exclusively for three years, then prove she remains virgin. He must also be proven to be unable to reach an erection with anyone, such as the two accomplished courtesans employed by the court. Only then, would impotence be ruled.

Divorce

Divorce and legal separation were rare occurrences and a divorce was not granted to a wife until after the Regency Era. Only 276 divorces occurred between 1765 and 1857. Between the passage of the first British divorce bill in 1697 and 1857, only four divorces were granted to women, the first in 1801.

Canon law allowed for separation, called the divortium a mensa et thoro (separation from bed and board), in cases of lethal cruelty and adultery on the part of the husband, or adultery committed by the wife. A divortium a mensa et thoro allowed the husband and wife to reside apart, marked the end of the husband’s financial responsibility for his wife and prevented both parties from remarrying.

3 Steps of the Divorce Procedure

First, the husband brought a suit against his wife’s lover in a civil trial, called a criminal conversation or a CrimCon trial. The offense of criminal conversation was a euphemism for adultery and since a wife was considered the property of her husband, it was tried as a form of trespass or property damage. Successful CrimCon suits found the wife’s lover guilty and carried a hefty fine for alienation of affection. The wife could neither attend nor testify as she was not considered a principal in these cases, despite her reputation being the central issue, because a wife had no legal identity separate from her husband.

After obtaining the CrimCon conviction, the husband then charged his wife with adultery and requested a legal separation (divortium a mensa et thoro) to sever all responsibility for his former wife. The bishop of the see in which the couple had been married, presided over this second ecclesiastical trial, the divorce trial itself.

Unless Parliament passed a Private Act (or Bill) of Divorcement granting permission, a divorced man could not remarry. The third hearing on this bill was as extensive as the other trials and concerned the reversion of the settlements made at the time of the marriage. Passage of such bills resulted in a divorce a vinculo matrimonii, which allowed both parties to remarry unlike the ecclesiastical divortium a mensa et thoro.


This article would have been impossible without Allison Lane’s invaluable collection of Common Regency Errors and The Regency Wrangles Blog’s wealth of information and details of specific cases in its Divorce category of posts.

The Regency Collection has a Calendar of Milestones in women’s rights that starts in 1832 and is fascinating reading when you realize how far we’ve come in 200 years.

Visit my post on Regency Marriages & Elopements or my Regency Resource page for more information regarding a variety of other Regency-themed topics. If you’d like more information on a specific place or topic, please let me know in the comments section below.

  11 Responses to “A Primer on Regency Divorce and Annulments”

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  1. Kristen, wow thanks for the information. Now I can read a historical and better understand what is happening – LOL.

    • Thanks, Margaret! I’m glad these are proving useful for people! I’d probably just be as lost in a police procedural despite watching Castle every week. 😉 Too distracted by Nathan Fillion. LOL

  2. Divorce in England wasn’t any easier to obtain–or socially acceptable–one hundred years later. It wasn’t until 1929 that women could divorce their husbands on equal grounds! In Ireland, a Catholic nation, divorce was impossible–only a legal separation on the grounds of cruelty, adultery, or unnatural practices; however, Scottish laws were a trifle more lenient, and a woman or man could divorce for either adultery or desertion, and the innocent party was granted a divorce settlement.

    • You’re right, Evangeline, that it’s really only been less than 100 years is even more impressive in some ways, but in others shows some other areas where progress could be made. Thanks for the additional information!

  3. Thank you for such a clear explanation. It’s amazing how far we’ve come. One of my distant relatives got divorced at the beginning of the twentieth century. Becuase of the social stigma, she had to move across the States, go to a small town where no one knew her and pretend that her husband had died!

    • Thanks, Katheryn! How sad for your relative. It’s so hard to imagine anyone these days putting up with being treated that way.

  4. You give three valid reasons for anullment. How about a forced marriage? Regency romances are replete with instances of the villain abducting the heroine and making off to Gretna Green for a ceremony to which she is only an unwilling participant.

    I can’t believe that a forced marriage, even in Scotland, could not be annulled.

    • Sorry it took so long to get back to you, Jim, but this is basically covered by the circumstance of fraud (the non-consenting bride). It might also be a case of incompetence if the bride was underage but consented. But in real life, as opposed to fiction, the considerations of scandal and how that would affect her chances of finding another man to marry to take her off her father’s hands was often a more pressing financial concern.

      You’ll also notice that in most of those Regency romances where the villain carries the heroine off to Gretna Green, the hero stops them before they reach the border and does all he can to mitigate the damage to her reputation, up to an including, marrying her himself. =)

  5. Again, Kristen to the rescue! I am researching the Henry Dundas (Scottish) divorce case–a particularly cruel example of what can happen to an adulterous wife. Your post explains a lot.

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