Exodus 20:14 Thou shalt not commit adultery.
Adultery: woman that breaketh wedlock [Strong's Concordance]
Divorce Records in the Public Record Office
Legal Records Information 18
History of the Divorce Law
Under early Catholic church law there was no such thing as divorce. Death was the only agent for the permanent dissolution of a marriage. Although Henry VIII had dissolved several of his marriages, there was no general divorce in the sense that these marriages were dissolved by a formalised legal process. By the end of the sixteenth century and despite the introduction of a reformed Protestant religion, 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, and fundamental changes in practice and attitudes came only in the twentieth century.
In practice, however, various remedies were found to separate partners in unsatisfactory marriages. These remedies were available through the church courts, through the common law courts and through parliament. There were five main methods:
1. Judicial Separation by the Ecclesiastical Courts
Judicial separations were authorised through the ecclesiastical courts, usually in the local consistory court with right of appeal to the archbishop's court. The Court of Arches (Province of Canterbury) had the right of appeal to the High Court of Delegates. The cases so started were rarely fought to a finish, as often the suits were undertaken to bring one of the parties to terms. If one of the parties appealed to the High Court of Delegates, which retained rights of appeal from ecclesiastical courts between 1532 and 1834, the case would be suspended and transferred to that court for a hearing.
There were several different types of judicial separation, the most common of which was:
Records of the consistory courts are held locally. The records of the Court of Arches are available at the Lambeth Palace Library, and those of the Consistory court of York at the Borthwick Institute of Historical Research.
2. Full Divorce by Act of Parliament
In 1670 came the first true parliamentary divorce, between John Manners, Lord Roos, and Lady Anne Pierpont. It created a precedent for parliamentary divorces which were brought only on the grounds of the wife's adultery and were designed to safeguard property rights of a particular family, which would be undermined if illegitimate offspring were included among the legal heirs.
Private divorce acts are mainly to be found at the House of Lords Record Office, although there are a few examples among the public records (see below).
Divorces in parliament could be preceded by the Action for Criminal Conversation. (Crim. con). This was a civil suit for the recovery of damages against the spouse's partner in adultery. This action had originated as the common law courts of King's Bench and Common Pleas extended the range of the action of trespass to provide a legal remedy for the husband against the seducer of his wife. In the late seventeenth century and early eighteenth century these were commonly sued through the court of King's Bench. In 1809 the House of Lords ordered that every divorce bill should be accompanied by the transcript of a preliminary trial for criminal conversation. This suit was illegal in Scotland.
3. Private Separation
This originated during the Interregnum as a result of the legal and administrative disorder of the marriage and separation processes. The conditions of separation were drawn up in a private deed between the husband and the trustee of the wife, the latter having 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. By the late seventeenth century cases were brought in Chancery in an attempt to enforce the deeds against defaulting parties.
The passing of the divorce 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.
Cases before Chancery may be traced in the records held at the Public Record Office, but before commencing a search it is necessary to know the names of the parties and the approximate date. There may also be records of the deed, and family correspondence, amongst family or estate records. These collections are usually held locally and can be traced through the National Register of Archives which is held at the Historical Manuscripts Commission.
4. Desertion and Elopement
When little or no property was involved this was the simplest solution. However neither party was free to legally marry again. There are occasionally applications for relief by the deserted wife among the Quarter Sessions records held locally, as under statue law a deserted wife became chargeable to the parish.
5. Wife Sale
This was a form of public which took place on market day, usually with pre-arranged bidding. It fulfilled the function of providing a symbolic transfer of person, property and responsibility. There could even be a deed of sale, though survival of these is extremely rare. Reports of wife sales may occasionally be found in Quarter Sessions records and local newspapers. Since many of these marriages were based on informal contract this was a wholly different type of 'marriage' and 'divorce'.
Divorces, and especially the action of crim. con. were extremely newsworthy items. Many reports of sensational trials found their way to the newspapers, both national and local, from the late eighteenth century and the beginning of the nineteenth. Newspapers are often, therefore, a good source of additional information. Many trials were covered in some detail by The Times, which is available at the PRO. Newspapers may be consulted at the British Library Newspaper Library at Colindale, while local newspapers may be available from local record offices and reference libraries.
The 1857 Divorce Act
The Matrimonial Causes Act on 1 January 1858 led to the creation of a court for divorce and matrimonial causes. It took over the jurisdiction for matrimonial affairs from the ecclesiastical courts. In 1858 the Legitimacy Declaration Act empowered the court to hear and determine petitions for declarations of legitimacy or validity of marriage. Appeal was to the House of Lords.
The divorce act offered no radical changes in procedure or in the legal basis of the grounds for divorce. Husbands could sue on the grounds of the wife's adultery, while the wife could sue for divorce on the grounds of adultery only if combined with a further offence: bigamy, bestiality, incest, rape, sodomy, cruelty or desertion for two years. The ecclesiastical procedures and remedies were still applied. The action of criminal conversation was abolished, but the husband was still allowed to claim compensation. The court could also examine witnesses in person, and was empowered to deal with child custody, maintenance and alimony.
The 1857 act did not apply to Ireland. Inhabitants of Ireland who sought a divorce still had to submit a private bill to Parliament in London. All matrimonial suits short of full divorce passed through the ecclesiastical courts until they were disestablished in 1869. In Ireland the separation from bed and board was termed a divortium a mensa et tor and was available on the grounds of adultery, unnatural practices and cruelty. After 1869 the ecclesiastical courts' jurisdiction passed to the civil courts. These records of the Irish courts have not survived. After 1921, Westminster's jurisdiction was transferred to the parliament of Northern Ireland. Divorce in the Irish Free State was not technically illegal until the constitution of 1937, but no bills of divorce were accepted by the southern Irish authorities during that period.
In 1873 the jurisdiction to the court for Divorce and Matrimonial causes was transferred to the new High Court of Judicature, where it was joined to the probate and admiralty courts to form the Probate, Divorce and Admiralty Division. Appeals were now heard by the Court of Appeal.
In 1878 the Matrimonial Causes act conferred jurisdiction on the justices of the peace in cases of marital violence. Such records that survive may be available locally.
In 1925 a bill was passed which allowed divorce to be granted to wives on grounds of the husband's adultery. In 1937, a divorce act extended the causes for divorce beyond cruelty since the marriage, and unsoundness of mind. The act was extended to Scotland in 1938 and to Northern Ireland in 1939.
In 1960 the Matrimonial Proceedings (Magistrates' Courts) Act allowed magistrates to make 'matrimonial orders' for ending of cohabitation, maintenance payments, and provision for custody of children. Terms of complaint included: adultery, one of the parties being a drunkard or drug addict, desertion, cruelty, and guiltiness in an indictable offence. One of the parties had to reside within the area of the petty sessions covered by the court. The Matrimonial Causes Act of 1967 conferred jurisdiction in divorce to the county courts, which could hear and determine any undefended matrimonial case. Appeal was to the High Court, where the case could also be transferred should the case become contested. The act did not apply to Scotland or Northern Ireland. Further liberalisation came with the 1969 Divorce Reform Act, which made the irretrievable breakdown of marriage the sole ground of divorce. This was taken to have occurred if there was adultery, unreasonable behaviour, desertion for at least two years or if the parties had been living apart for five years.
In 1970, under the Administration of Justice Act, the Probate, Divorce and Admiralty Division of the supreme court was renamed the Family Division. It was now empowered to hear appeals from county and magistrates' courts in certain matrimonial and guardianship cases.
Records in the Public Record Office
Records of divorce cases are rarely mentioned specifically in PRO lists, apart from J 77 and J 88. Before making a search it is necessary to have an idea of when the separation or divorce took place, or whether and when an appeal was made from a local court in questions of separation before 1858.
1. Parliamentary Divorce
There are isolated examples of private divorce acts in the class C 89, Certiorari bundles, Rolls Chapel series, Henry VIII to George III and in C 204, Certiorari bundles, James I to George III. These are acts of parliament, which were removed to the Chancery under writs of certiorari, which was an instruction that a court be informed or certified on a specific matter. This last class also contains acts pertaining to the Roos case of 1670.
There are also Chancery enrolments of separations from bed and board in the class C 78, which contains the decree rolls, 26 Henry VIII to 1903. Such decrees and orders were enrolled to make the record more solemn. Ecclesiastical court orders directing payment of money could also be enrolled up to six months after being made. These documents are partially calendared and indexed by name in a set of expanded PRO class lists.
2. Appeals to the High Court of Delegates
Appeals from judgements delivered in the ecclesiastical courts were heard in the High Court of Delegates from 1532 until the court's abolition in 1833. Copies of proceedings in the court of first instance in ecclesiastical appears are in DEL 1, for 1609 to 1834, (indexed in DEL 11/7). These papers include the full details of the trial as heard before the inferior court, and can provide a wealth of family history including for example, business connections and where the family had lived, if the depositions of the witnesses are included. Some of the early material is in church Latin and is difficult to use, and sometimes the accounts of proceedings can run to hundreds of pages. Exhibits submitted to the court, such as marriage licences and entries from parish registers may be transcribed.
Cause Papers, which include allegations and petitions, can be found in DEL 2, Cause Papers c.1600 to 1834. The papers are arranged by case and term, and consist of bundles of papers relating to each particular case. Details can include: the authorisation of the judges and a formal statement of the terms of the appeal (usually based on faults in the previous legal proceedings, rather than on the intrinsic justice of the case), a note of any appearance by the parties and their statement, the warrants or monitions for hearing and a copy of the citation. The early papers can be in Latin, with occasional depositions in English. A good deal of the material is in a standard legal form, but it is possible sometimes to obtain personal details about the parties concerned.
The Case Books in DEL 7, 1796 to 1834, contain bound volumes of printed proceedings and also may contain manuscript records of the judgement given. These volumes give a chronology of the proceedings before the courts of first instance, the names of the judges, and some detail about the parties, for example the parish of residence. There are sometimes copies of the interrogatories and responses of witnesses which can provide a good deal of information about the family. They also should be of considerable interest to social historians and also to those interested in the financial background of the family involved where these details were deemed necessary for the effective hearing of the case.
Decrees and orders of the court are in the class DEL 5, 1585 to 1802.
There are other classes which can provide subsidiary material. Examinations are recorded in DEL 3, 1557 to 1735, Acts in DEL 4, 1538 to 1756, include a note of the proceedings of the court, although they are not complete after 1692. Notes of the proceedings in court and chambers can also be found in DEL 6, assignation books, 1650 to 1838. DEL 11 contains a solicitor's circular of 1857 setting out the provisions of the new probate and divorce acts.
3. Appeals to the Judicial Committee of the Privy Council
Appeals in ecclesiastical cases between 1834 and 1858, when the new divorce court was created, were heard before the Judicial Committee. Copies of proceedings from the ecclesiastical courts can be found in the class PCAP 1, Privy Council Appeals Processes 1834 to 1859. The records in this class are bound volumes of documents relating to a particular case and are very similar in format to the documents in DEL 1. The Assignation books in PCAP 2 record the proceedings of the committee itself. Bound volumes of printed proceedings of the committee with manuscript entries of judgements are in PCAP 3, Privy Council Appeals Case Books 1834-1870.
4. The Court For Divorce and Matrimonial Causes and the Probate, Divorce and Admiralty Division of the Supreme Court.
After 1858 all divorce cases were heard before the new court for divorce and after 1873 by the Probate, Divorce and Admiralty Division of the Supreme Court of Judicature. Files from these courts can be found in J 77, Principal Probate Registry Divorce Files, 1858 to 1940. They include papers arising from petitions for divorce and judicial separation, court minutes, as well as declarations of legitimacy. They may also include a copy of the petition giving the grounds for the divorce and copies of the original marriage certificate. They are indexed by the names of the parties in volumes dating 1858 to 1958 which are in the class J 78. The surviving papers in the files are variable in number. From 1938 only a selection of divorce files has been preserved. Decrees nisi and absolute have been extracted from the files not selected for preservation and are held by the Principal Registry of the Family Division, which has records of divorce from 1938 and will search them for a fee.
There are also divorce files in the class J 132, Supreme Court of Judicature, Official Solicitor: Divorce Papers. This class consists of a 2% random sample of cases where the Official Solicitor acted for one of the parties, usually a child or person of unsound mind. They cover the dates 1938 to 1973, but all are restricted under a 75 year closure.
Registers containing epitomes of matrimonial cases in which the Procurator General has shown why a decree nisi should not be made absolute are in the class TS 29. Most of these registers are closed for 75 years. Case papers of the Procurator General are in the class TS 22, for the years 1852 to 1937. These records are closed for 100 years. Divorces between British and foreign nationals are also mentioned in the Foreign Office records where a precedent was involved. See The Records Of The Foreign Office From 1782 for further guidance.
Recent reports submitted to Parliament by the Law Commission and which cover the topic of divorce reform, are in BC 1, which contains Law Commission reports 1974 to 1981. The pieces in this class are already open.
Addresses of Other Institutions Mentioned Above:
Divorce Records After 1858
Legal Records Information 44
1. Divorce Legislation, 1857-1939
The Matrimonial Causes Act 1857 led to the creation on 1 January 1858 of a Court for Divorce and Matrimonial Causes. This took over the jurisdiction for matrimonial affairs from the church courts and was empowered to deal with child custody, maintenance and alimony. Appeal was to the House of Lords. The procedures and remedies of the church courts were still applied. The action of criminal conversation was abolished, but the husband was still allowed to claim compensation.
The 1857 act offered no radical changes in procedure or in the legal basis of the grounds for divorce. Husbands could sue on the grounds of the wife's adultery, while the wife could sue for divorce on the grounds of adultery only if combined with a further offence: bigamy, bestiality, incest, rape, sodomy, cruelty or desertion for two years. The passing of the act did not affect the use of deeds of private separation, as the law made no provision for the ending of marriages on the grounds of incompatibility. Many reports of sensational trials found their way to the newspapers, both national and local. Many trials were covered in some detail by The Times.
In 1858 the Legitimacy Declaration Act empowered the Court to hear and determine petitions for declarations of legitimacy or validity of marriage. In 1873 the jurisdiction of the Court for Divorce and Matrimonial causes was transferred to the new High Court of Judicature, where it was joined to the probate and admiralty courts to form the Probate, Divorce and Admiralty Division. The Court of Appeal now heard appeals.
In 1878 the Matrimonial Causes Act conferred jurisdiction on the justices of the peace in cases of marital violence. Such records that survive may be available locally. In 1925 divorce was allowed to be granted to wives on grounds of the husband's adultery. The causes for divorce were extended in 1937.
2. Divorce Records, 1858-1943
Divorce became the business of the secular courts only in 1858. Divorce files from 1858 to 1943 exist in the PRO. They include papers arising from petitions for divorce and judicial separation, court minutes, and declarations of legitimacy. They may also include a copy of the petition giving the grounds for the divorce and copies of the original marriage certificate. All divorce files of the Central Court before 1938 were kept, although unfortunately there are some gaps: for example, some 5000 files for 1936 are not there. After 1938 only a sample was kept. All these divorce files are in J 77. The indexes are in J78, and cover 1858 to 1958.
After 1943, the decrees nisi and absolute have been extracted from the files. (This was also done from 1938, for the files not selected for preservation. ) The decrees are held by the Principal Registry of the Family Division, who are prepared to search them for a fee.
From 1938 onwards, there is also a 2% random sample of divorce files in J 132, for cases where the Official Solicitor acted for one of the parties, usually a child or person of unsound mind. These are subject to a 75 year closure.
The Procurator General had an interest in regulating divorce cases. There are epitomes of cases in which he showed why a decree nisi should not be made absolute, in TS 29. Most are closed for 75 years. Case papers of the Procurator General, 1852-1937, are in TS 22. These are closed for 100 years.
Divorces between British and foreign nationals are also mentioned in the Foreign Office records where a precedent was involved.
3. Divorce Records After 1943
Divorce became widely available after the Second World War, when the extension of legal aid to divorce suits brought it within the financial reach of all citizens. Records are still held by the Principal Registry of the Family Division, who will search them for a fee. The files have been stripped of the case papers, and now contain only the decrees nisi and absolute. Contact The Principal Registry of the Family Division, First Avenue House, 42-49 High Holborn, London WC1V 6NP.
At the PRO, there is a 2% random sample of divorce files in J 132, for cases where the Official Solicitor acted for one of the parties, usually a child or person of unsound mind. These are subject to a 75 year closure. Reports on divorce reform submitted to Parliament by the Law Commission, 1974 to 1981, are in BC 1. These are already open.
4. Divorce in Ireland
The 1857 act did not apply to Ireland. Inhabitants of Ireland who sought a divorce still had to submit a private bill to Parliament in London. All matrimonial suits short of full divorce passed through the church courts until they were disestablished in 1869. In Ireland the separation from bed and board was termed a divortium a mensa et tor and was available on the grounds of adultery, unnatural practices and cruelty. After 1869 the church courts' jurisdiction passed to the civil courts. These records of the Irish courts have not survived. After 1921, Westminster's jurisdiction was transferred to the parliament of Northern Ireland. Divorce in the Irish Free State was not technically illegal until the constitution of 1937, but no bills of divorce were accepted by the southern Irish authorities.