Each Valentine’s Day, I start off feeling happy. My contentment grows as my husband and I put our five children to bed and we enjoy a quiet dinner in the kitchen. I’m still happy when we plop ourselves onto the sofa for an hour of television before bedtime. But then my mood changes and I can’t help thinking about divorce. I don’t mean for me. It’s the shows we watch. The romantic twists and miserable turns of the characters; their many heartbreaks and only occasional highs reflect a deeper truth about modern life.
The fact is, in the United States the probability of a first marriage lasting for 20 years has decreased to about 50-50. (Before anyone blames Western decadence for the breakdown of the family, it should be pointed out that the Maldives occupies the number one spot in the divorce league tables, followed by Belarus. The United States is third.) Furthermore, these grim statistics don’t even touch on the reality that for an increasing percentage of the population, life is a series of short cohabitations punctuated by the arrival of children. For a country that makes such a fuss about love on the 14th of February, America has a funny way of showing it on the other 364 days of the year.
This may be my XX chromosomes doing the talking, but it seems to me that divorce is, and always has been, a women’s issue par excellence. Multiple studies have shown that women bear the brunt of the social and economic burdens that come with divorce. The quickest route to poverty is to become a single mother. This is awful enough, but what I find so galling is that the right to divorce was meant to be a cornerstone of liberty for women. For centuries, divorce in the West was a male tool of control—a legislative chastity belt designed to ensure that a wife had one master, while a husband could enjoy many mistresses. It is as though, having denied women their cake for so long, the makers have no wish to see them enjoy it.
There is no point trying to pin down where things went wrong for women because, when it comes to divorce, it’s not clear that things were ever right. Still, that shouldn’t prevent us from exploring how the modern concept of a legal divorce came into being, or from dismantling many of the myths that surround the history of divorce.
The most celebrated divorce case in history remains that of Henry VIII versus Pope Clement VII. The battle began in 1527, when Henry tried to force the pope into annulling his marriage to Catherine of Aragon, who had failed to provide him with a male heir. Determined to make the younger and prettier Anne Boleyn his wife, Henry finally broke with Rome in 1533 and declared himself the head of a new church, the Church of England. The collateral damage from Henry’s unilateral decision was a way of life that stretched back for more than a thousand years. Gone forever was not just a system of patronage or the ancient rites, but the vast network of religious schools, hospitals, convents and monasteries that maintained the social fabric of the country.
If Helen’s face is said to have launched a thousand ships, then Anne’s closed a thousand churches. Yet her ascendancy over Henry did not survive the stillbirth of a male heir. A mere three years after the controversial marriage, Anne was convicted of treason, adultery and incest, and beheaded. Her enemies were legion by the time of her death, and even today some still regard her as the original home-wrecker, the woman whose unbridled social ambition destroyed the sanctity of marriage. It is generally assumed that she caused the floodgates of divorce to be opened in England, never to be closed again.
As with most assumptions, appearances can be deceiving. Henry’s marriage to Anne led to precisely one divorce—in 1552. The term was not even used again until 1670. In fact, while Protestant Europe was beginning to embrace the idea that there could indeed be justifiable reasons for ending a marriage, England actually made a lurch backward. Not only did Henry VIII’s new church come out against divorce under any circumstances, but it also far outstripped Catholic Europe in the restrictions on the granting of annulments. The liberal consanguinity rules of cousinhood, for example, which allowed even distantly related couples to part, were scrapped entirely.
The Church of England’s resistance to divorce was so strong that the only route to a divorce was via an act of Parliament—a law voted through by both houses. Not surprisingly, few people had the means or inclination to expose their private unhappiness to the press, the public and 800-odd politicians. When a divorce law was finally enacted in 1857, and the “floodgates” were opened, the number of divorces in English history stood at a mere 324.
Only four of the 324 cases were brought by women. A husband needed to prove adultery to obtain a divorce. By contrast, a wife was required to prove adultery and some other especially aggravating circumstance to have the same grounds. Over the years, women learned that brutality, rape, desertion and financial chicanery did not count. In fact, Parliament seemed hard pressed to say what did, until Jane Addison launched her case in 1801. She won on the basis of Mr. Addison’s adultery and incest with her sister in the marital home.
Before Mrs. Addison’s successful suit, the best a woman could hope for was a legal separation. Such arrangements were under the jurisdiction of the church courts. Litigants of either sex could sue for separation on the basis of life-threatening cruelty or adultery. Women who obtained a divortium a mensa et thoro (separation from bed and board) could live apart from their husbands, often on an allowance fixed by the court. The process was expensive and tortuous—hence there were only a few dozen cases a year—and at the end, no matter what the grounds for the separation, a wife was still required to be chaste and obedient to her husband. Unless there were truly extenuating circumstances, she could expect to lose custody of her children, too.
The paucity of options available to women did not mean that they simply stopped trying. The grounds for annulment included inability to consummate the marriage. The sheer ordeal of providing proof—the wife was always subjected to physical examinations of the most intrusive kind—was enough to deter most women. But in 1561, Willmott Bury of Devon requested an annulment on the grounds that her husband, John, was physically incapable of consummating the marriage. The examining midwives agreed that Mrs. Bury was a virgin, and a physician testified that a kick from a horse had left Mr. Bury with just one testicle, the size of a tiny bean. The court duly granted an annulment. Unfortunately, on his release from Willmott, John married again and fathered a son. Matters came to a head when the next in line to inherit Bury’s estate challenged the validity of the annulment, and tried to have the son proclaimed illegitimate. The suit ultimately failed.
The embarrassment caused by the Bury case led to a far stricter interpretation of the rules, including the new stipulation that if an ex-husband suddenly “found” his potency, the annulment became invalid. Nevertheless, in 1613, Frances, Countess of Essex, and her family cited impotency in their nullity suit against the Earl of Essex. As the countess’ father put it, “the Earl had no ink in his pen.” Essex did not dispute the fact that the marriage had never been consummated. But, eager to avoid dishonor and humiliation, he claimed that the difficulty was only with Frances.
Aristocratic society did not know what to make of the case. Meanwhile, Frances had fallen in love with King James I’s favorite courtier, the Earl of Somerset. She was desperate to marry him, and prepared to do anything to win her case—a dangerous state of affairs that would come back to haunt her.
Frances’ lawyers believed they had found a solution in the form of an obscure pronouncement by the 13th-century saint Thomas Aquinas. According to Aquinas, a man could be rendered temporarily impotent if witchcraft were involved. The Earl of Essex, claimed Frances’ lawyers, had been the victim of malevolence by a person or persons unknown. An annulment was therefore possible with all honor intact.
Few people were taken in by the Aquinas argument, and certainly not the Archbishop of Canterbury, who headed the panel of ten judges. But Frances and Somerset had a powerful ally in the form of the king. The suit was granted by a majority vote, and the couple were married in December 1613 in the society wedding of the year.
This was not the end of the story, however. Two years later, the king received a letter that he could not ignore. It accused Frances of having poisoned Sir Thomas Overbury, one of the loudest critics against the annulment, who conveniently died just ten days before the court decision. If that were not damaging enough, Overbury had died while a prisoner in the Tower of London—sent there on the orders of the king. Behind the obvious scandal lay a possible conspiracy that reached all the way to the throne. Suspects were rounded up with bewildering speed. Frances was arrested and pleaded guilty to attempted murder. The disgraced couple was permanently banished to the country, where they lived out their days in bitterness and mutual recrimination.
The Essex affair had a dampening effect on annulment suits. Subsequent litigants invariably failed unless they had an incontrovertible case involving, for example, two women and a deception, such as the 1680 suit of Arabella Hunt, who thought she married “James Howard” only to discover “he” was a woman named Amy Poulter. A woman married to a castrato could also claim valid grounds, as in the doomed 1766 love affair between Dorothea Maunsell and the Italian opera singer Giusto Ferdinando Tenducci. This left two grounds open to women: bigamy and being underage at the time of the marriage. Both were easy to prove and surprisingly common until the 1753 Marriage Act established a set of rules for the performing and recording of marriages. Before then, a woman married to a scoundrel could only hope that he had a secret marriage somewhere in his past.
In 1707, Barbara Villiers, one of Charles II’s favorite mistresses, was rescued from years of misery after she discovered that her husband of two years was already married. Barbara had been long pensioned off with a handsome allowance and the title of Duchess of Cleveland when, at the age of 64, she fell for a man ten years younger named Robert “Beau” Fielding. She married him on November 25, 1705, despite his reputation as one of London’s worst rakes. But what Barbara did not know was that two weeks earlier, Fielding had married Anne Deleau, a widow with a fortune of £60,000. Fielding kept the deception going for six months until he discovered that an even greater deception had been practiced on him. “Anne Deleau” was actually Mary Wadsworth, a friend of the real Anne Deleau’s hairdresser. Fielding turned his rage on the Duchess of Cleveland, beating her so badly that she jumped through a window to escape his violence. She brought a successful suit against him in December, by which time he had already run through a great deal of her money and seduced her granddaughter, leaving her pregnant with his son.
Since the hideous violence Fielding inflicted on Barbara would not, in itself, have been sufficient to secure a divorce, it raises the question whether there was ever a case so extreme that the courts intervened. The answer is just once, but not in the manner traditionally associated with divorce. In April 1631, a grand jury indicted the Earl of Castlehaven on the capital charges of rape and sodomy. The list of his alleged crimes included hiring his male lovers as his servants and giving them full control of the household, marrying off his eldest daughter to one of his lover/servants, colluding in the seduction of his adolescent stepdaughter, and finally, holding down his wife while she was raped by one of his servants. Castlehaven’s chief defense was that a wife’s body belonged to her husband, to dispose of as he saw fit. According to English law, the prosecutors could not disagree with the first part of his statement, but they rejected the logical conclusion of the latter. The earl was sentenced to death.
Castlehaven was beheaded on May 14, 1631, almost exactly 100 years after the execution of Anne Boleyn. The irony was that in both cases, death had been easier to achieve than divorce. Contrary to popular belief, Henry VIII did not divorce any of his wives. He had sought an annulment from Catherine of Aragon—which he finally awarded to himself after the pope’s continued refusal. When it came to Anne’s turn, Henry took the easy route by having her found guilty of treason. Two days before her execution he became anxious and ordered his bishops to decree an annulment as well. Henry did not like to think of himself as a wife killer. If Anne Boleyn was guilty of starting any sort of trend, it was in adding new significance to the line “till death do you part.”