A systematic sample of the petitions presented to the English Divorce Court from 1858 through 1908 makes it possible to assess the differential contribution of discrete social and economic subgroups to the litigation the Court oversaw. An examination of four of these—the titled aristocracy, those employed in the theater, those in receipt of financial aid, and laborers—shows that English divorce litigants exhibited a broader social profile than commonly attributed to it by the newspaper coverage of divorce litigation, which gave a skewed impression of its social profile. Analysis of these cases underscores the gendered, class, and geographically inflected demand for divorce in a judicial setting that imposed severe restrictions on access to divorce as a remedy for marital breakdown.
France, for example, had a much higher divorce rate than England from 1884, when the French legislated a mechanism for divorce. But in doing so, the French provided for a local jurisdiction, relied upon a generous system of financial aid, and did not allow press coverage of divorce cases. These differences go far to explain the contrasting divorce rates on the two sides of the English Channel. Gail Savage, ‘‘Divorce and the Law in England and France Prior to the First World War,’’ Journal of Social History 21 (Spring 1988), 499-513. Similarly, Robert Pike, in ‘‘Legal Access and the Incidence of Divorce in Canada: A Sociohistorical Analysis,’’ Canadian Review of Sociology and Anthropology 12 (1975), 115-33 documents the restraining influence of a strict divorce law in Canada, where the law was largely based on English practice.
2.
Sybil Wolfram , ‘‘Divorce in England 1700-1857,’’Oxford Journal of Legal Studies5 (1985), 155-86, Stuart Anderson, ‘‘Legislative Divorce-Law for the Aristocracy?’’ in Law, Economy and Society, 1750-1914: Essays in History of English Law, edited by Gerry R. Rubin and David Sugarman (Professional Books Limited, 1984), 412-43; Lawrence Stone, Road to Divorce: England 1530-1987 (London: Oxford University Press, 1990), 301-46.
3.
On restitution of conjugal rights and its significance see: Stephen Cretney, Family Law in the Twentieth Century: A History (Oxford : Oxford University Press, 2003), 143-51; Maeve Doggett, Marriage, Wife-Beating and the Law in Victorian England (London: Weidenfeld and Nicolson, 1992).
4.
See Gail Savage , ‘‘The Divorce Court and the Queen’s/King’s Proctor: Legal Patriarchy and the Sanctity of Marriage in England, 1861-1937,’’Historical Papers, Quebec ( 1989), 210-27.
5.
Griselda Rowntree , and Norman H. Carrier, ‘‘The Resort to Divorce in England and Wales, 1858-1957,’’Population Studies11 (1957-1958), 192.
6.
Guy Routh, Occupation and Pay in Great Britain 1906-60 (Cambridge : Cambridge University Press, 1965 ), 97.
7.
Albert. H. Halsey, ed., Trends in British Society Since 1900: A Guide to the Changing Social Structure of Britain ( London: Macmillan, 1972), Table 2.23, 47.
8.
Quoted in Colin Gibson, ‘‘The Effect of Legal Aid on Divorce in England, Part I: Before 1950,’’Family Law1 (1971), 90.
9.
Oliver R.McGregor, Divorce in England (London: Heinemann, 1957), 36.
10.
Stone, Road to Divorce, 386.
11.
A Verbatim Report of the Mordaunt Divorce Case (London : Frederick Farrah, 1870) http://lms01.harvard.edu/F/XDX6LAAK267C6M5KCBC9E3HQ65V3BCUI987LXX36E6IBI6VD9N-18381?func=find-b&find_code=SYS&request=004390742
12.
The O’Shea-Parnell Divorce Case: Full and Complete Proceedings ( Boston: National Publishing, 1890-1899 ) http://pds.lib.harvard.edu/pds/view/5809680?n=1&s=4
13.
Roy Jenkins , Dilke: A Victorian Tragedy ( London: Papermac, 1996), 215-324.
14.
The impressions given by the skewed coverage of divorce cases in the newspapers need to be treated with some caution by scholars engaged in the study of English divorce. For instance, Allen Hortsman, in an early study of English divorce stressed the importance of these groups in the Divorce Court, but he based his social analysis entirely on newspaper reports of divorce cases. Victorian Divorce (New York, NY: St. Martin’s Press, 1985), 113-54.
15.
Important work based on these materials has been done by A. James Hammerton in Cruelty and Companionship: Conflict in Nineteenth-Century Married Life (London: Routledge, 1992) and Danaya C. Wright, ‘‘Untying the Knot: An Analysis of the English Divorce and Matrimonial Causes Court Records, 1858-1866,’’ University of Richmond Law Review (May 2004). I do not know of any published work based on a study of these records that covers an extended period of time.
16.
This period falls between the legislative point of departure for secular divorce in 1857 and the beginning of the twentieth century divorce law reform movement that emerged in 1908 and took definitive shape with the appointment of the 1909 Royal Commission on Divorce and Matrimonial Causes. This period also exhibited only a very gradual increase in divorce before the first phase in the accelerating increase in divorce marked by the First World War, and the total number of divorces remained very small, under 1,000 until the First World War. Stone, Road to Divorce, 387. For the significance of this period in the history of divorce generally, see Roderick Phillips, Putting Asunder: A History of Divorce in Western Society (Cambridge: Cambridge University Press, 1988), 479-515. The sample is part of a larger, ongoing project tentatively entitled ‘‘Breaking Up is Hard to Do: Divorce and Divorce Law Reform in England, 1828-1937.’’ The larger study seeks to situate a full analysis of the sample cases between an examination of the early nineteenth century divorce law reform movement that culminated in the passage of the 1857 Divorce Act, and an examination of the early twentieth century divorce law reform movement that culminated in the passage of the 1937 Marriage Act.
17.
The Times provided the most systematic and the most readily available coverage of the Divorce Court in its legal pages. It also has a printed index and is now available online. For this study, I used the printed index and the microfilm edition of the Times. In addition, the Times’ employment of court reporters endowed its coverage with claims to respectability that tended to mute any sensationalism in its coverage. See Anne Humphreys, ‘‘The British Newspaper Press and the Divorce Court,’’ in Nineteenth Century Media and the Construction of Identity, edited by Laurel Brake, Bill Bell, and David Finkelstein (New York, NY: Palgrave, 2000) and Gail Savage, ‘‘Erotic Stories and Public Decency: Newspaper Reporting of Divorce Proceedings in England,’’ Historical Journal 41 (June 1998), 511-28.
18.
This appears to be a continuation of a trend rather than the beginning of a new one. Studies of Parliamentary divorce show a steep decline in the proportion of titled aristocrats obtaining such divorces from 21 percent in the period 1800-1829 to 2 percent during the period 1830-1857. Stone, Road to Divorce, Table 10.2B, 433.
19.
David Cannadine, The Decline and Fall of the British Aristocracy (New York, NY: Anchor Books, 1990), 11.
20.
Charles Booth , ‘‘Occupations of the People of the United Kingdom, 1901-81,’’Journal of the Statistical Society of London, 49 (June 1886 ), 322.
21.
See John M. Maguire, ‘‘Poverty and Civil Litigation,’’Harvard Law Review36 ( 1923), 361-404 for a detailed discussion of in forma pauperis. The aid provided consisted only of the remission of court fees. Legal advice had to be provided gratis. And neither source of aid helped to mitigate one of the most costly aspects of divorce litigation, the expenses associated with bringing witnesses to court.
22.
All tables are based on the sample cases drawn from the J77 series deposited in The National Archives (hereafter TNA) in Kew.
23.
TNA PRO J77/342/0296, Crawford v. Crawford & Dilke, August 5, 1885. For a scholarly study of the nuances of this case, see Kali Israel, Names and Stories: Emilia Dilke and Victorian Culture (New York, NY: Oxford University Press, 1999).
24.
TNA PRO J77/461/4047, Russell v. Russell, November 29, 1890. For an examination of this case that draws heavily on the press coverage, see Ann Sumner Holmes, ‘‘‘ Don’t Frighten the Horses:’ The Russell Divorce Case,’’ in Disorder in the Court: Trials and Sexual Conflict at the Turn of the Century, edited by Nancy Erber and George Robb (New York, NY: New York University Press, 1999). The failure of the 1890 divorce petition left Russell and his wife estranged and began a seemingly endless round of marital litigation that finally ended with Russell’s trial for bigamy in 1900 before the House of Lords. In desperation, Russell had gone to the United States to get an American divorce in Reno and remarried there. These experiences turned Russell into a lifelong advocate for divorce law reform. On Russell’s life and political career, see: Gail Savage, ‘‘‘ . . . Equality From the Masculine Point of View . . . :’ The Earl Russell and Divorce Law Reform,’’ Russell: the Journal of Bertrand Russell Studies, Summer 1996.
25.
For a popular account of the Campbell case, see Gordon H. Fleming, Lady Colin Campbell: Victorian ‘Sex Goddess’ (Gloucestershire : The Windrush Press, 1989).
26.
TNA PRO J77/302/8973, Mulligan v. Mulligan, July 24, 1883.
27.
TNA PRO J77/770/3451, De Lohéan v. de Lohéan, December 4, 1902.
28.
TNA PRO J77/503/5314, De Manin v. De Manin & MacDonald, November 4, 1892; London Times, March 27, 1893, 3e.
29.
TNA PRO J77/93/1146, Wenckstern v. Wenckstern, April 24, 1869.
30.
TNA PRO J77/115/2045, Davoud v. Davoud & Percival, July 28, 1871.
31.
TNA PRO J77/912/7696, Lascelles v. Lascelles, June 4, 1907; London Times, June 26, 1908, 20d. Money given in old style: pounds.shillings.pence.
32.
TNA PRO J77/438/3358, Fowke v. Fowke, November 30, 1889.
33.
TNA PRO J77/302/8973, Mulligan v. Mulligan, July 24, 1883.
34.
Frans Van Poppel, in ‘‘Family Breakdown in Nineteenth-Century Netherlands: Divorcing Couples in The Hague,’’History of the Family2 (1997), Note 7, observed similar patterns exhibited by divorces among artists and actors.
35.
TNA PRO J77/19/F85, Flitney v. Flitney, November 3, 1865; London Times, June 15, 1866, 11d.
36.
TNA PRO J77/63/46, ‘‘Petition’’ Young v. Young, June 14, 1861.
37.
TNA PRO J77/63/46, Young v. Young, June 14, 1861, London Times, May 15, 1862, 12b.
38.
TNA PRO J77/177/4488, Cameron v. Cameron & Pickering, July 8, 1876; London Times, February 1, 1877, 11c.
39.
Hansards, 3rd ser., Vol. 147 (1857), col. 408. Charles Dickens, in Hard Times, used the predicament of Stephen Blackpool to underscore the injustice of denying the poor access to divorce.
Maguire, ‘‘Poverty and Civil Litigation,’’Harvard Law Review36 (1923), 361-404.
46.
Statistical investigations of divorce commonly identify a relationship between urban conditions and increased divorce. For one example, see Koen Matthijs, Anneleen Baerts, and Bart Van de Putte, ‘‘Determinants of Divorce in Nineteenth-Century Flanders,’’ Journal of Family History 33 (July 2008), 239-61. See also Van Poppel, ‘‘Family Breakdown in Nineteenth-Century Netherlands,’’ History of the Family 2 (1997), which makes the same point. Roderick Phillips also discusses the role of urbanization in the increasing propensity to divorce associated with modern, industrialized society. Phillips, Putting Asunder, 376-77, 589. The association between the urban setting and divorce might well reflect the breakdown of family and community ties, but it might also reflect the proximity of legal resources not so readily available in rural areas. In this respect, the restriction of the English divorce court’s sittings to London would have played an important role.
47.
TNA PRO J77/451/3746, Teat v. Teat & Martin, 1890.
48.
TNA PRO J77/525/6024, Curtis v. Curtis & Taylor, 1893.
49.
TNA PRO J77/808/4561, Colville v. Colville & Morgan, January 28, 1904; London Times, November 10, 1905, 3 d-e.
50.
TNA PRO J77/400/2182, Walker v. Walker, March 28, 1888.
51.
Ginger S.Frost, Living in Sin: Cohabiting as Husband and Wife in Nineteenth-Century England (Manchester andNew York, NY: Manchester University Press, 2008).
52.
Great Britain, ‘‘Royal Commission on Divorce and Matrimonial Causes,’’Minutes of Evidence (Cd. 6479), 71.
53.
Great Britain, ‘‘Royal Commission on Divorce and Matrimonial Causes,’’Minutes of Evidence, Appendix III, Table XVa, 35.
54.
Rowntree and Carrier, ‘‘The Resort to Divorce,’’ 221-2. The ranges of percentages represent the different options for distributing the missing cases. Carrier and Rowntree simply record the proportion of missing cases in their presentation of their data.
55.
Horstman, Victorian Divorce, 98.
56.
For another instance in which opening up the possibility for divorce stimulated a broad-based demand for it, see Stephanie Smith, ‘‘‘If Love Enslaves . . . Love be Damned!’: Divorce and Revolutionary State Formation in Yucatan,’’ in Sex in Revolution: Gender, Politics, and Power in Modern Mexico, edited by Jocelyn Olcott, Mary Kay Vaughan, and Gabriela Cano (Durham and London: Duke University Press, 2006), 103.
57.
Phillips notes similar social patterns in other jurisdictions. Before the liberalizing of divorce law in the twentieth century, litigants could not be representative of society at large, but they nevertheless included more couples from a less privileged social background than might be expected. Phillips, Putting Asunder, 607-8. On the other hand, when divorce law and procedure did not present material obstacles to divorce, then the social identity of litigants would be broadly representative of the society at large. For instance, see Van Poppel, ‘‘Family Breakdown in Nineteenth-century Netherlands.’’
58.
Rowntree and Carrier, ‘‘The Resort to Divorce,’’ Table 2, 201.
59.
Recent studies of late nineteenth and early twentieth century divorce in other jurisdictions have produced similar findings. See Martin Schultz, ‘‘Divorce Patterns in Nineteenth-Century New England,’’ Journal of Family History 15 (1990), 101-15; Dale C. Penningroth, ‘‘African American Divorce in Virginia and Washington DC, 1865-1930,’’ Journal of Family History 33 (January 2008), 21-35; Gregory Swedberg, ‘‘Divorce and Marital Equality in Orizaba, Mexico, 1915-1940,’’ Journal of Family History 34 (January 2009), 116-37.
