Content Warning: This article contains discussion of Sexual Assault and Murder
Gender relations within a society’s history are often covert; they must be searched out, found within the nuances of comparison between male and female treatment – but nowhere are the specifics of male and female relationships more covert than within the legal history of marriage and divorce. This article will use both marital and divorce legislation to illustrate historic and contemporary gender inequality, examining the medieval common law on marital rights, the Matrimonial Act of 1857, the Matrimonial Causes Act of 1937, the Divorce Reform Act of 1969 and the 1973 Matrimonial Causes Act, which is still in place today, to illustrate this. This article will also use this range of legislation to establish – in light of the proposed Divorce Law – what divorce and marital law can tell us about past and present societies. Whilst this article will cover a range of time periods and themes, as it will focus largely on legislation within the United Kingdom, particularly England and Wales, it will not cover a range of locations, and as such its universal applicability is limited.
It seems appropriate to start not with the end of marriages, but instead with the laws that governed marital relations. Innate inequality was visible within these laws, best evidenced through the treatment of wives and crime. According to Lord Wilson, the law presumed that, when not evidence to the contrary, a husband forced his wife into committing a crime, and a wife could use marital coercion as a justification for committing the crime. Unsurprisingly, in deeply religious medieval society, these views were upheld, perpetuated, and perhaps sometimes created by the Bible. Indeed, in marriage ceremonies today in which the Book of Common Prayer is still commonly used, the bridegroom is asked “wilt thou love her, comfort her, honour her, keep her..?” whilst the bride is asked “wilt thou obey him, serve him, love, honour and keep him.” Even enshrined within wedding vows is a woman’s essentially contractual commitment to subservience.
Mariticide was one form of crime which women could not justify by claiming marital coercion – obviously if a woman kills her husband, she cannot give marital coercion as reasoning. However, within the crime of mariticide, gender inequality is once more revealed. Whilst when a man killed his wife (uxoricide), the crime was simply murder, a woman’s killing of her husband came under the offence of petty treason until the abolition of the offence of petty treason in 1838. An attack on a husband was an attack on a lord and master and thus akin to a challenge to the authority of the crown. For crimes of treason, individuals were usually hung, drawn, and quartered, but as this was deemed to be inappropriate for women they were instead burnt at the stake. Whilst to many this may seem like a more grotesque punishment, there were some small concessions for women: for example, if she was pregnant the execution was postponed, and if she was fortunate, she might be strangled before being burnt at the stake – though that hardly seems like much of a privilege. This inequality does not end with the crime that they were accused of but also the punishment the received. According to Lord Wilson, many men escaped capital punishment due to benefit of the clergy which meant that if they could read, or memorise and spout out the 51st psalm, known as the neck verse, they could become members of the clergy and thus gain immunity to capital punishment. Whilst very few people were literate in the medieval period, fewer women were literate than men – it is estimated that in the later Middle Ages out of the total population ten percent of men and one percent of women were literate. Should this have been the case then some women would have been able to use benefit of clergy; however, until the Benefit of the Clergy Act in 1691, only men could use the benefit. Whilst it is important to be careful about using crime to illustrate everyday experience, it does give a clear insight into the gender relations which governed medieval society.
Gender relations between men and women were also evident in the different treatment of both male and female adultery. The inequality is at its clearest in the 1650 Adultery Act passed under Oliver Cromwell, which stated that if a woman committed adultery she would be sentenced to death, whereas if a man committed adultery, he would be sentenced to three months imprisonment unless he committed adultery with a married woman, in which case he would be sentenced to death also. This act did lapse after the Reformation; however, it does evidence the inequality in sentencing. This inequality seems to be based upon the somewhat unfounded idea that adultery committed by men had less impact than that committed by women. There was a consideration that women’s adultery was more impactful as it would make people question a husband’s link to his male effect – the same was obviously not true for a husband’s adultery. There was also an assumption that women did not have sexual desire. According to C. N. Johnston, testifying in the 1910 case, ‘a woman is protected much more than a man both by natural modesty and by social conventions. The defiance of these indicates a greater degradation and perversion of affection on the part of a married woman than does similar conduct on the part of a man.’ There is a sense in female adultery cases that female adulterers are not just morally corrupt but also transgressing their femininity. This is reflected in the fact that in the 1839 Custody of Infants Act, women were for the first time able to obtain custody of their child, if their child was under the age of seven – but only if they had never committed adultery. Inequality still exists within the government’s current definition of adultery as an instance in which ‘your husband or wife had sexual intercourse with someone else of the opposite sex’. According to this definition, within the current system a couple cannot use adultery as grounds for divorce if the affair was committed between members of the same gender; the law should be equal and regard affairs with the same significance regardless of the genders of the perpetrators.
The laws surrounding divorce cases have also changed since 1857. In 1857 for the first time an act of parliament was no longer required to obtain divorce, and divorce could now be obtained on the grounds of adultery or desertion for men, and adultery in combination with an additional fault (which could include rape or incest). According to this law, if a woman had committed adultery she still had no legal rights to her children. The 1923 bill once again made it easier for women to petition for divorce, but they still had to prove adultery. The 1937 Matrimonial Causes Act extended the grounds to include desertion for over three years, cruelty, drunkenness, and incurable insanity. The Private Members Bill increased the annual number of divorces, but the process remained lengthy and expensive, meaning it was out of reach for many people, and especially so for women. The 1969 Divorce Reform Act, set into motion by Leo Abse, was noted as being one of the biggest reforms in divorce law. Following recommendations for reform by the law commission, it made marital breakdown a legitimate reason for divorce – meaning that a couple could divorce after being separated for two years if the divorce was mutual, or after five years if only one party wanted the divorce. This inequality persisted well into the twentieth century; women were routinely refused mortgages as late as the 1980s as very few were employed continuously. The 1973 Matrimonial Causes Act, which is still in place today, meant that single grounds for divorce must be proven by one of five facts – adultery, unreasonable behaviour, desertion, consensual divorce, after the separation of two years or after five years separation if only one party wanted the divorce. There is still room for these acts to be reformed. That is the plan for 6 April 2022, with a proposal for a “no-fault” divorce, which will allow couples to end marriages within two years of separating, without having to blame one another – the hope of course being that this will make the process easier, not just for the partners but also for children. As has been proven within this article, the history of marriage and divorce has reflected and often perpetuated unhealthy inequality within society, but I also hope that it has proven that there is still a way to go before absolute equality is achieved within marriage and divorce.
Written by Sophie Whitehead
Dunn, Caroline. Stolen Women in Medieval England : Rape, Abduction and Adultery, 1100-1500 / Caroline Dunn. Cambridge: Cambridge University Press, 2013.
Gaddy, C. Welton. Adultery and Grace : the Ultimate Scandal / C. Welton Gaddy. Grand Rapids, Mich: W.B. Eerdmans Pub. Co., 1996.
Holmes, Ann Sumner. “The Double Standard in the English Divorce Laws, 1857-1923.” Law & Social Inquiry 20, no. 2 (1995): 601–20. http://www.jstor.org/stable/828954.
Levin, Jennifer. “The Divorce Reform Act 1969.” The Modern Law Review 33, no. 6 (1970): 632–48. http://www.jstor.org/stable/1094045.
The High Sherrif of Oxfordshire’s Annual Law Lecture, 9th October 2012 , available at https://www.supremecourt.uk/docs/speech-121009.pdf