Who Do You Think You Are? Encyclopedia of Genealogy (71 page)

Records of divorces that took place at the Court of Sessions between 1830 and 1971 can be found along with all other cases that were heard at that court. There are printed general minute books of the court at the National Archives of Scotland in CS17/1, which lead to card indexes and bound indexes to the cases. Cases of judicial separation, which was more common than divorce before the 1938 Act allowed cruelty to be a ground for divorce, can be found in the same way as divorce records in the Court of Sessions, up until 1907. The sheriff courts heard separation cases after 1907, and dealt with issues of spouse and child maintenance and child custody. These records are held at the NAS among the civil court processes and the registers of extract decrees in series SC.

Divorce cases heard in the Court of Sessions after 1971 have been indexed in a separate commissary index kept in CS17/3. The case papers are divided into two series: ‘extracted' and ‘unextracted' papers. The Register of Acts and Decreets in CS45 contain the judicial verdict for the extracted case papers. If an ‘R' has been written next to an entry this usually means that children were involved in the case and the papers would have been retained by the court until the youngest child reached the age of 16, at which point the records would be transferred to the NAS.

The General Register Office for Scotland has kept
a Register of Divorces since 1 February 1984, indexed alphabetically. Divorce certificates can be obtained by writing to

The Extractor of the Court Session

2 Parliament Square

Edinburgh EH1 1RF

An extract from the register will tell you the court in which the case was heard so that you may locate the case papers. If it was heard in a sheriff court the case papers will still be with the sheriff clerk. The Court of Sessions retains case papers for divorces heard there for up to six years after the case (unless children were involved), before they are sent to the NAS.

Divorce has always been a controversial issue in Ireland because of the strength of both the Catholic Church and the Church of Ireland, and the religious conviction felt there. When civil divorce was introduced in England and Wales in 1858 the law was not extended to cover Ireland, and the definitions of divorce and separation in canon and civil law were conflicting and remained unchanged for a long time. Very few divorces were obtained in Ireland; only 39 judicial separations and suits for Criminal Conversation were won between 1857 and 1910, all of which were by Protestant petitioners, and as few as 12 were granted in the eighteenth century. Between 1700 and 1800 the Irish Parliament granted just nine divorces; however, the manuscript records of the Irish Parliament were destroyed by fire in 1922.

Any Acts of Parliament granting a divorce between 1800 and 1922 would have been dealt with in London, so a search of the English records is necessary. The National Archives of Ireland has some indexes to annulments granted in the 1860s and 1870s and for the very early 1900s, stating the reasons that were petitioned, but there are no unified indexes. If you believe your ancestor obtained some form of judicial or ecclesiastical separation from their spouse in Ireland you should contact the National Archives of Ireland explaining the time period you are researching and what you know of the background to the case. They will be able to point you in the direction of any records, if they survive.

Though divorce was extremely uncommon in Ireland, informal separation and desertion were inevitable. Private separation deeds could be
legally enforced from 1848, but wives were not allowed to undertake such contracts until 1882. From 1886 magistrates' courts could issue maintenance orders against husbands who deserted their wives, and these continued to be issued throughout the twentieth century. Records of deserted wives and children dependent on parish relief may be found in local record offices. David Fitzpatrick has written an essay entitled ‘Divorce and Separation in Modern Irish History' in
Past and Present
114 (1987) in which he examines why divorce was so uncommon and explains how social mores prevented unhappy couples from separating and how such obstacles were dealt with in everyday life.

Civil divorce was introduced in Northern Ireland in 1939, before which time only the Church courts or a private Act of Parliament could grant a divorce or separation. The Public Record Office of Northern Ireland holds some records for Church courts and of private divorces granted in the 1920s and 1930s, though these were as few as one a year. It is best to write to PRONI explaining what you know already about the annulment or divorce so that they can assess whether their records will be of use to you. If you believe your ancestors sought an annulment or divorce from the Church of Ireland you should contact the archivist at the Representative Church Body Library to find out where any relevant records might be found.

When civil divorce was introduced, the High Court began granting divorces in 1940, although it was not until 1982 that county courts could also hear divorce cases. The Probate and Matrimonial Office hold indexes for divorce certificates issued by both these types of court since 1940. To obtain a copy of the divorce absolute and nisi write to them at

Probate and Matrimonial Office

Family Division

Royal Courts of Justice

Chichester Street

Belfast BT1 3JF

It is important to state that you want a copy of the decree nisi as well as the decree absolute because the nisi will give the reasons for the divorce. The court papers are not available to the general public, but once you have obtained a copy of the divorce certificate you can write to PRONI giving them all the information you have gathered so far, explaining your relationship to the divorcees and why you want access
to the papers so that they can consult with the court service to see if access can be granted.

Until very recently divorce or official separation could only be obtained in the Republic of Ireland by petitioning the Church courts or by obtaining a private Act of Parliament. When the Republic of Ireland was granted independence in 1922 the Constitution of the Irish Free State, which governed Ireland between 1922 and 1937, was undecided on its attitude towards divorce. A Bill was passed in the late 1920s that made it virtually impossible to remarry after divorce, though it was not until 1937 that remarriage was made illegal. Divorce itself was also made illegal by the new 1937 Constitution. It was not until 1995 that people voted for in a referendum for divorce to be legalized.

Even since civil divorce has been reintroduced, the grounds for obtaining a divorce are more stringent than in the UK and people who marry in a Catholic Church and subsequently obtain a civil divorce may not marry another partner in a Catholic church if their first spouse is still alive. The National Archives of Ireland does not hold any records relating to modern civil divorces because court material has to be at least 20 years old before it is transferred there, and the information is not generally accessible by the public.

Between 1937 and 1997 it was still possible to obtain an ecclesiastical separation or divorce
a mensa et thoro
through the Church, but remarriage was strictly forbidden and very few people applied for such a divorce. The Central Catholic Library in Dublin and the Catholic Archive Society of the United Kingdom and Republic of Ireland may be able to help you trace divorces granted by the Catholic Church prior to the 1990s.

The constraints of public moral attitudes, religious pressure and rigid and expensive legal procedures meant that few couples divorced if their marital bliss turned sour. Even those who could afford the cost of divorce were deterred by the time and effort required to convince a court to grant one, not to mention the publicity and scandal generated by the court hearings. The majority would simply opt for an informal separation and the unlucky ones found themselves deserted by their unhappy spouse. It is hardly surprising, then, that at least one of the partners in the marriage

‘
It is hardly surprising that bigamous marriages were not uncommon
.'

Vic Reeves had always suspected that his maternal grandfather, Simeon Leigh, had a secret – a previous marriage. This was fairly common knowledge within Vic's family, as the story had been passed down to Vic's mother; but rumours that he was a bigamist also abounded. Vic decided to have a look into his mysterious grandfather to see if there was any truth in the tale …

The first step was to ascertain when he married Vic's grandmother, and see what his marital status was. Simeon Leigh married Lillian Crowe in 1926, and indeed the marriage certificate stated that he was a widower, aged 39. Consequently, Vic searched for his first marriage – and found it recorded in Sculcoates, near Hull, in 1900 to Mary Jane Payne. A cursory check of the birth indexes after this date, though, provided a real shock – Vic found three children born to this marriage from 1901 to 1907.

Therefore, the strong possibility existed that Simeon Leigh was a bigamist. To prove the case one way or another, Vic started to look for evidence either that Mary had died – as Simeon claimed at the time of his second marriage – or that they had legally divorced. A search of the indexes to divorce case papers at The National Archives failed to find an entry under the Leigh or Payne surnames (in case she had reverted to her maiden name); similarly, an extensive trawl of death indexes from 1907 – the birth of Mary's last child – to 1926, when Simeon remarried – failed to find a match. Of course, there could be numerous explanations for why someone's death was not recorded in the civil registration indexes – Mary might have emigrated and died overseas, for example. So Vic tried another tack – forward reconstruction.

By following the lives of the three children from Simeon's first marriage, Vic hoped to find a living relative from that side of the family who could fill in the gaps in his knowledge. He ordered marriage certificates for each of Simeon's children, and then looked for the offspring of these marriages – repeating the process until he'd tracked down a living descendant of his grandfather, completing the search by locating them via modern electoral lists. On visiting, Vic learned that Mary Jane Leigh had indeed survived, and was presented with a picture of her looking very much alive and well at the time of her eldest son's wedding in 1927 – one year after Simeon married Vic's grandmother bigamously.

would move away from their community and start a life elsewhere, and, given that cohabitation was so frowned upon, bigamous marriages were not uncommon prior to the mid-twentieth century.

Suggestions for further reading:

•  Victorian Divorce
by Allen Horstman (St Martin's Press Inc., 1985)

•  Road to Divorce, England 1530–1987
by Lawrence Stone (Oxford University Press, 1990)

•  Alienated Affections: The Scottish Experience of Divorce and Separation, 1684–1830
by Leah Leneman (Edinburgh University Press, 1998)

•  Family Law
by Alan Shatter (Tottel Publishing, 4th edition, 1997)

•  ‘
Divorce and Separation in Modern Irish History' by David Fitzpatrick
, Past and Present
114 (1987)

•  
The National Archives Research Guides, Legal Records Information 43: ‘Divorce Records Before 1858', and Legal Records Information 44: ‘Divorce Records in England and Wales After 1858
'

Some people who had left their first spouse would marry a subsequent lover in an irregular marriage ceremony to avoid being caught by the authorities. Prior to 1753 some marriages were valid under English common law but were not recognized by ecclesiastical law. For bigamous men and women such marriages made it easier to escape attention because without the need for banns to be read for three weeks in advance the marriage could be arranged hastily and could take place away from their home parish. (There is more on irregular marriages in Chapter 7.) Mark Herber has transcribed and published the registers of some clandestine marriages in London in
Clandestine Marriages in the Chapel and Rules of the Fleet Prison 1680–1754
, which has an interesting introduction to the history of irregular marriages. Other similar registers can be found in local record offices.

Hardwicke's Marriage Act of 1753 put an end to these irregular ceremonies by decreeing that a marriage was only valid and lawful if performed by a priest in the parish church where one of the spouses lived, and the reading of banns gave anybody who was aware of an impediment to the marriage, such as one of the betrothed being married already, the opportunity to come forward. However, the Act did not extend to Scotland, Ireland or the Channel Islands, so couples could elope there to marry.

The 1753 Marriage Act, the outlawing of irregular marriages and the centralization of civil registration indexes should, in theory, have made it more difficult to commit bigamy, yet it was still easy enough to get away with telling lies until your past caught up with you. Bigamy had been a felony in England and Wales since 1603. Newspapers are full of the scandal of bigamy trials and local record offices will contain court proceedings against suspected bigamists (see
Chapter 27
on tracing criminal ancestors). Trials were supported by evidence from former neighbours and friends and from relatives who could vouch for the validity of the bigamist's first marriage or could prove that they married again in the knowledge that their first spouse was still alive.

There were, of course, plenty of people who got away scot-free after committing bigamy, and so you may stumble across a bigamous marriage in your ancestry by accident. There are usually some giveaway clues. The bigamous person will probably have lied on civil registration certificates or parish register entries and the discrepancies between various documents might arouse your suspicion.