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We think of divorce as a relatively modern phenomenon. But we spend a lot of research time unsuccessfully  looking for missing spouses – so did divorce exist in the 1860s?

It is true that divorce was not only difficult to obtain (adultery had to be proved and a private Act of Parliament was required) but also very expensive. A committee in the House of Lords had to consider the petition. Although an “official” divorce gave the parties the right to remarry, by 1857 there had been only 318. Of these, only 4 were attributable to female petitioners.

Instead, many couples simply separated and found other partners, or the man joined the armed forces and started a new life. The first case to be brought to Parliament by a woman was in 1801, when Jane Campbell divorced her husband, Edward Addison, on the grounds of adultery with her sister, Jessy Campbell.

Church Courts could annul a marriage by a decree that the marriage had never been valid. Commonly this was when an allegation of bigamy had been made, or one of the parties was under 21 and had married without parental consent. One reason why marriage registers from 1754 to 1812 include the words “with the consent of” is to reduce the number of potential claimants. Again, an annulment gave the right to remarry.

The church could also order a sort of half way house which, whilst not allowing remarriage, allowed the couple to legally live apart. One reason the church actively discouraged legal separation was because a wife left to bring up the children on her own would be eligible to claim parish relief under the poor law. Hence it was not in the interest of the parish coffers to condone a marriage breakdown.

There was a major change to the law on 1 January 1858, when it became possible to obtain a divorce from the newly set up Court for Divorce & Matrimonial Causes. The odds were stacked against the wife – for example, a husband merely had to prove adultery, whereas a wife had to prove cruelty in addition. In our own family tree we have an example of a divorce where, in 1871 a family member is shown as a boarder in a household where the husband was away at sea, the wife ended the marriage in 1874 (divorce located on the index on the findmypast web site) to enable her and our man to marry in Portsea in 1875. The marriage certificate not only describes her condition as divorced but also usefully gave her former married name.

As a result of the simpler (and cheaper) procedures, the rate of divorce increased to about 800 a year by the start of the First World War. By 1939 this figure had risen to a staggering 8000, as a result of the availability of legal aid and the increase in the number of courts at which a divorce petition could be heard.

So what sources exist for tracing divorce?

  • The best place to start is the National Archive fact sheet, where it states that most case files 1858 to 1927 have survived and can be found in Class J77 and are indexed in J78. The index can also be searched online (chargeable) 1858 to 1911 at the Ancestry website.
  • You can also contact: The Principal Registry of the Family Division, Decree Absolute Section, First Avenue House, 42-49 High Holborn, London WC1V 6NP. (Tel 020 7947 7015). For a fee, they will access an index to the registered court copies of decrees absolute and either provide a certified copy of the information themselves (if the divorce was granted by the Supreme Court) or arrange for a certified copy to be sent to you from the relevant County Court.

Adapted from ‘EDUCATION SPOT’, by Tony Knight, ‘DIVORCE’. First published in ‘The Hampshire Family Historian’ Vol 34, No 1, (June 2007).

This article is strictly for non-commercial use and remains the copyright of both the Author and the Hampshire Genealogical Society. It must not be copied, published or reproduced in any form whatever without the express written permission of the Society. ©Hampshire Genealogical Society 2007, 2009 ES0001.pdf

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