Who Do You Think You Are? Encyclopedia of Genealogy (70 page)

If the husband was seeking a separation from his wife on grounds of adultery he may also have sought compensation from her lover by pursuing a Criminal Conversation suit in the court of King's Bench or Common Pleas on a charge of the lover having ‘trespassed' his wife's body, which was her husband's property in the eyes of the law. Sensational reports of these civil suits can be found in both local and national newspapers from the late eighteenth century onwards
.

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Divorce Acts are kept at the Parliamentary Archives with a sample of cases held at The National Archives in series C 89 and C 204, and reports were often published by
The Times
which may be searched online.

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About Archives produced a separate index to the names of spouses and adulterous lovers listed in court reports by
The Times
between 1788 and 1910, which can be found on microfiche and in book form at the Society of Genealogists and Guildhall Library, entitled
Index to Divorces as Listed in Palmer's Indexes to ‘The Times' Newspaper London, 1788–1910
.

To obtain a divorce by Act of Parliament the couple would usually have been through various ecclesiastical courts to first of all obtain an annulment, then a declaration of nullity and a divorce
a mensa et thoro
(‘from bed and board'), before finally submitting a private Bill before Parliament for a full divorce.

Courts of the bishops, or consistory courts, could grant an annulment, a form of legal separation that protected the rights of the wife and any children but did not allow either party to remarry. Annulment could be granted if it was found one of the parties had committed bigamy or if the husband and wife were too closely related and should never have been allowed to marry. Other grounds for seeking an annulment or nullity could be for non-consummation, lunacy or, as of 1754, because one of the spouses had been under 21 years of age at the time of marriage and parental consent was not obtained.

If an annulment was granted the couple could then seek to have the marriage declared null and void, which meant the marriage should never have taken place from the outset and any children of the marriage were therefore made illegitimate. A wife also lost the right to a third of her husband's property on his death, but the parties were still not allowed to remarry.

Prior to going to Parliament, the Church courts could grant a couple a divorce
a mensa et thoro
, translated as ‘from bed and board', if adultery or life-threatening cruelty was proved, though again neither
party was legally allowed to remarry. Records of the consistory courts are held in local record offices, but if an appeal was lodged at a higher court all the case papers from the earlier court hearing were transferred to the court of appeal, in which case the records may be held at The National Archives. There was a right of appeal firstly to the archbishop's court, and further appeal could be taken to the High Court of Delegates until 1834, and then to the Judicial Committee of the Privy Council from 1834 until 1858. The records of the High Court of Delegates are held at The National Archives in series DEL 1, DEL 2 and DEL 7 and for the Judicial Committee of the Privy Council in series PCAP 1 and PCAP 3.

If a propertied couple who were financially well off wished to separate without the expense and publicity of obtaining a divorce, a private deed could be drawn up with terms agreed by the husband and the wife's trustee (in common law a wife had no legal power because she was the property of her husband). Private separation became more common during the seventeenth-century Cromwellian Interregnum when Church courts did not operate, and were also preferable to couples with children because a declaration of nullity would render their heirs illegitimate. The deed might include provisions for their children, some legal safeguards for the wife, and an agreed maintenance allowance to be paid by the husband, but marriage to another person would have been illegal and bigamous. The Matrimonial Causes Act of 1857 made no provision for divorce on the grounds of incompatibility, therefore couples continued to use deeds of separation after the introduction of civil divorce.

To learn more about researching a divorce or separation in England or Wales prior to 1858 read The National Archives' Research Guide, Legal Records Information 43: ‘Divorce Records Before 1858'. Lawrence Stone has written a study of early divorce in England entitled
Broken Lives: Separation and Divorce in England 1660–1857
, which has several detailed case studies of early separation and divorce with references to the court papers
.

Deeds of separation can be found at The National Archives among the Close Rolls in C 54, an index to which is kept on open shelf in the Map and Large Document Reading Room, arranged by the names of the parties. Some deeds will have been kept among family and estate papers if the couple were relatively wealthy, which may be searched for using the National Register of Archives. If one of the parties to the deed broke the agreed conditions of the separation then a petition could be presented to the Court of Chancery to enforce the deed's terms. Such Chancery cases became more common by the late seventeenth century, records of which are held at The National Archives in series C; however, they are difficult to find without knowing the names of the parties (Chancery cases were sometimes filed under the names of acting solicitors) and an approximate date of the case.

In January 1858 civil divorce was made easier with a new Court for Divorce and Matrimonial Causes opening to hear all cases regarding marriage and divorce. In 1873 this court became the Probate, Divorce and Admiralty Division of the Supreme Court of Judicature and is now known as the Principal Registry of the Family Division. Nevertheless, divorce remained costly and the court proceedings were centred in London, making it unattainable for most ordinary couples who did not have the time or money to hire a London lawyer, file a petition in the London registry and make a court appearance in the capital.

The Principal Registry in London holds a central index to all divorce suits since 1858. Divorce certificates issued in England and Wales can be obtained for a fee from

The Principal Registry of the

Family Division

First Avenue House

42–49 High Holborn

London WC1 6NP

A certified copy of the decree absolute can be provided, but if you would like to know the cause of the divorce then a copy of the decree nisi should also be ordered
.

Poorer women could apply to a local magistrate for a separation and maintenance order from 1878 against an aggressive husband if he was convicted of aggravated assault against her. This type of legal protection was built upon through the latter part of the nineteenth century to provide for virtuous wives and children abandoned by their neglectful husbands and fathers, but if the wife became involved with another man after the separation, or if she had committed adultery before, she was not entitled to seek maintenance from her husband for herself or her children. Magistrates' courts granted thousands of separation and maintenance orders every year until divorce became a more affordable option, and records of these orders will be found at local record offices if they survive.

Divorce did not become an option for the less well-off classes until the 1920s. From 1922 ten assize courts across England and Wales were allowed to hear certain types of divorce cases, making divorce more accessible to people living away from the capital. In the 1920s legal aid was extended to help some couples obtain a divorce, and in 1923 women could at last pursue a divorce on the grounds of her husband's adultery without needing to prove another offence such as life-threatening cruelty or desertion. In 1927 the number of assize towns where divorce proceedings could be heard was increased to eighteen, while petitions could be filed in twenty-three district registry offices in addition to the Principal Registry in London. It was not until the 1960s that county courts were allowed to hear the suits and 1971 that divorce by mutual consent was allowed, which is the most common way of filing for a divorce nowadays.

Case files were created for every divorce suit, but very few survive after 1938. Those that do are kept at The National Archives, but for divorces granted in the last 20 years you should apply to the relevant court, which will destroy the case papers after 20 years. Case files contain the petition, affidavits, copies of any certificates and, from the 1870s, a copy of the decree absolute and decree nisi.

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The majority of case files for divorces between 1858 and 1927 have survived and can be found in J 77 arranged chronologically and by case number. There is an index to the surnames of the parties in J 78, but the names are arranged under the first letter of the surname and then according to the order the cases went to court, so if you are searching for the name Barnes you would have to search the whole of the index for ‘B'. The National Archives has produced a research guide in Legal Records Information 44: ‘Divorce Records in England and Wales After 1858', which gives a detailed description of how to use the indexes to locate a case file.

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Case files have survived for around 80 per cent of divorces that took place between 1928 and 1937, which are also kept in J 77, but files from the district registries were destroyed and these are not indexed in J 78.

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Divorce files since 1938 have mostly been destroyed, with the exception of a very small annual sample that can be searched by surname in the catalogue, restricting the department code to J 77. Another small sample of files for divorces where the Official Solicitor acted for one of the parties can be found in J 132 for later cases. Most files for divorces after the 1930s are subject to a 30-year closure.

If you are searching for records of a divorce after 1937 you could use the date and information about the court given on the divorce certificate to try searching local newspapers for a report of the case.

When searching the indexes to Scottish divorces it is important to remember that a married woman traditionally kept her maiden name in Scotland, so you should search under her maiden name as well as her married name. It also helps to know the name of the pursuer of the divorce as some indexes do not list the defender. The National Archives of Scotland has published an online guide to Scottish divorce records, found at www.nas.gov.uk/guides/ divorce.asp
.

The Scottish Reformation of 1560 established the right for a husband and wife to seek a civil divorce. Prior to this an annulment would have needed to be sought from the bishops' courts or a separation could be arranged, which meant that the couple were still legally married but did not have to live together as man and wife. The National Archives of Scotland has some records pertaining to early annulments and separations granted by some bishops' courts.

The Commissary Court of Edinburgh heard consistorial cases between husbands and wives from 1563, though the Court of Sessions had been doing so since 1560. Divorce was allowed on grounds of adultery, and from 1573 on grounds of desertion. Unlike English law, Scottish law did not allow a husband to pursue a Criminal Conversation suit against the
lover of his adulterous wife for ‘trespassing' her body, but in 1600 Parliament tried to outlaw the marriage of divorced adulterers to their lovers, though there were means of evading this Act. Divorce on the grounds of cruelty was controversial because, like elsewhere in the UK, it was generally accepted that husbands had a right to discipline their wives, and so separation was usually granted instead, until the Divorce (Scotland) Act of 1938. While divorce became increasingly accessible in Scotland through civil courts it was expensive to obtain and so many people continued to choose an informal separation.

An index to the names of people who pursued divorces in the Commissary Court of Edinburgh between 1658 and 1800 was compiled in 1909 by Francis J. Grant and published by the Scottish Record Society.
The Commissariot of Edinburgh – Consistorial Processes and Decreets, 1658–1800
gives the references and dates of cases so that you can find records in the relevant volume of judicial decisions (decreets) kept at the National Archives of Scotland in CC8/5, with corresponding case papers found in CC8/6. There are some earlier case papers that have not been indexed kept in CC8/6/1 from the period 1580 to 1624.

There is a separate index at the NAS to those decreets and case papers that were not indexed by Grant for the period 1801 to 1835. Use the index to persons found in CC8/6/176 to find records in the decreets also kept in CC8/5, and use the case lists in CC8/20/6 to locate the case files in CC8/6.

In 1830 the Court of Sessions became the sole court with responsibility for cases concerning marriage, divorce and bastardy, though the Commissary Court of Edinburgh continued to hear some cases until 1835. Changes were made to the law with the Conjugal Rights (Scotland) Act of 1861 and the Divorce (Scotland) Act of 1938, widening the grounds for divorce to include not only adultery and desertion but also cruelty, anti-social behaviour and non-cohabitation. The Divorce (Scotland) Act of 1976 made the crucial change of allowing divorce by mutual consent; however, it was not until 1984 that local sheriff courts could hear divorce cases so that people did not have to travel to Edinburgh.

Gretna Green, the most southerly Scottish village and the first place eloping English couples arrived at as they crossed the border, became famous for its irregular marriages, which were not made illegal in Scotland until 1940. Up until then anyone could marry a couple in an irregular marriage as long as a declaration was made before witnesses, although these ceremonies were frowned upon. The Ewart Library in Dumfries is a good source of information about irregular marriages at Gretna Green. Couples who entered into an irregular marriage in Scotland may have been rebuked in the local Kirk session along with their witnesses and ordered to pay a fine. Kirk session minutes, burgh and JP court records all contain evidence of irregular marriages taking place in Scotland
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