Jackie Simard – ECR Spotlight

Women, gender and divorce: an historical focus

In two years, it will be the 100th anniversary of the Matrimonial Causes Act of 1923. Within the Divorce Courts, this Act placed both spouses on equal legal ground for the first time, enabling either spouse to petition the court for a divorce solely on the basis of their spouse’s adultery. By allowing both spouses to obtain a divorce on the same terms, the double standard based upon sex and gender was removed.

This double standard was originally created under the Matrimonial Causes Act of 1857, the first statute to allow a secular court the ability to dissolve a marriage. If a husband wanted to obtain a divorce, he only needed to submit evidence of his wife’s adultery, whereas a wife needed to prove adultery plus one other unreasonable matrimonial action. This additional act could be, but was not limited to, bigamy, sodomy, rape, or cruelty. Women faced difficulties in proving legal cruelty within the courts as there was never a legal definition given in the statute law. Therefore, it was up to the courts to determine what constituted legal cruelty.

Social assumptions about gender difference were reflected in the double framing of the statute law, but they could also be used to the wife’s advantage. The wife was supposed to be pious and devoted to her husband, a popular concept endorsed in the ‘Angel in the House’ poem by Coventry Patmore. The wife, or the so-called angel was a passive and powerless figure who needed to be protected. Thereby if a husband performed actions that upset this ideologized gender role of the wife, his actions may have constituted cruelty.

In 1860, Ann Milner filed a petition for divorce based upon her husband’s adultery and cruelty. Within the petition, there were mentions of the various cruelties Ann suffered, but not all of them were of legal importance. The physical acts of cruelty committed years before the petition was filed were found to be unusable in the court. This was mainly due to the singularity of the events, and how long they occurred since the petition was filed. Therefore, in the Milner case the court had to determine if cruelty had been committed using an example given that was not of a physical nature.

In 1858, Ann and her husband, James Forman Milner, visited a friend in the city. Once they arrived at Fenchurch Street, James

‘turned round and said she should go no further, and taking her by the shoulders and making use of the most filthy language, he pushed her against the wall, and thrust his umbrella against her person. The blow inflicted no pain, but in consequence of his conduct a man passing by at the time took her for a prostitute, and seized hold of her leg’.

After this incident, she stayed with her husband for another month and then left him.

Ann was treated as a prostitute in the street by her husband, but this was not the usual form of cruelty that constituted divorce. Cruelty may not have been specifically defined in the statute law, but there were various legal judgements that helped to interpret the law and thus shape a definition. In a previous case law, Sir Cresswell Cresswell instructed the jury that legal cruelty was ‘[b]odily injury, reasonable apprehension thereof, or injury to health are general tests of legal cruelty’. This definition of cruelty did not match what Ann suffered from her husband. The event happened only that one time, was largely non-physical in nature, and did not directly harm her health. However, Sir Cresswell ruled in favour of granting her a divorce. In his verdict, he stated that he could ‘imagine nothing more insulting or shocking to a woman of proper feeling than being so treated’.

Ann’s role as a housewife of proper standing aided her in this petition. By using her husband’s verbal allusion to prostitution, Ann gained support from the court in protecting her reputation for virtuous femininity against the undeserved attack on her moral character. Therefore, her husband’s verbal attacks committed in the public sphere constituted legal cruelty for this judge.

This marriage ended with a granted divorce, but there were other untold stories of women who could not obtain relief from their husbands’ behaviours because of the double standard of divorce. By examining the Divorce Courts, the evolving role of gender in framing understandings of marital cruelty can be understood.

An image of Ann’s original petition for divorce, supplied by the author.

Jackie Simard is entering her fourth- year as a PhD researcher at the University of Edinburgh. Her PhD thesis explores non-physical spousal abuse through English and Welsh legal records, newspapers, and the census from 1857 to 1914. On campus she is a member of the Centre for the Study of Modern and Contemporary History, the Emotionally Demanding Histories Group, and attends various Gender and Sexuality seminars. Before attending the University of Edinburgh, she originally did her Master’s Degree in Early Modern material history at King’s College in London. Her interests are in gender, criminal, material and social histories.