Family Research – English, Scottish and Irish Genealogy

6/7/2004

Divorce Records Before 1858

A Brief History of Divorce

Until the English Reformation in the sixteenth century, divorces were granted by the Pope. Death was otherwise the only agent for the permanent dissolution of a valid marriage. Marriages found on investigation to be invalid could be set aside (as was the case with Henry VIII).

By the end of the sixteenth century, England was the only European Protestant country to have no divorce law as such. There was no legal change in the law of divorce before 1857. Fundamental changes in practice and attitudes came only in the twentieth century.

In practice, however, various ways were found to separate partners in unsatisfactory marriages, through custom, the church courts, the common law courts and parliament. There were five main methods:

Private Separation
Desertion and Elopement
Wife Sale
Declaration of Nullity, Annulment or Divorce a mensa at thoro by Church Courts
Full Divorce by Act of Parliament
Private Separation
The conditions of separation were drawn up in a private deed agreed between the husband and the trustee of the wife (who had no legal personality in common law). They settled into a common form by c.1730, and included provision for children, and some legal safeguards for the wife, the husband giving a bond to provide a maintenance allowance. Deeds of separation may be found enrolled in the Close Rolls in C 54 , although you will need the names of the parties to find them in the contemporary ‘indexes’ at The National Archives. By the late seventeenth century (and perhaps before) petitions were being presented to the Court of Chancery to try to enforce such deeds against defaulting parties. You will need the names of the parties and the approximate date to trace cases before Chancery in the various C series.

There may also be records of the deed, and family correspondence, amongst family or estate records. These collections are usually held locally. Search the online catalogue for their whereabouts at http://www.hmc.gov.uk/.

The passing of the Matrimonial Causes Act in 1857 did not affect the use of these deeds as the law made no provision for the ending of marriages on the grounds of incompatibility.

For further information please go to http://www.nationalarchives.gov.uk/

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