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‘The Divorce of the Empress Josephine’ (1843) by Henri Frédéric Schopin

Breaking Up is Hard to Do: Divorce Laws Have Evolved, But One Country Is Holding Back

Divorce can be traced all the way back to ancient Greek and Roman societies. But the idea of marriage in these cultures was different from what is found in modern Western society, so it makes sense that their understanding of divorce would have also been different. This means that divorce, within the context of a modern Western concept of marriage, has a much shorter history – beginning around the middle of the 19th century.

Since the fall of the Roman Empire, a large part of Western Europe was dominated by the Roman Catholic Church. Apart from governing the spiritual lives of the faithful, the Church wielded temporal authority as well. Thus, many aspects of everyday life, including marriage, were regulated by ecclesiastical authorities. As the Church viewed marriage as a sacred bond that should not be broken, divorce during this period was forbidden.

Fragment from the front of a sarcophagus showing a Roman marriage ceremony

Fragment from the front of a sarcophagus showing a Roman marriage ceremony. ( CC BY SA 4.0 )

Breaking Up with the Church

It was during the 16th century, as Europe was experiencing the Renaissance, that one of the best-known cases of divorce took place. In 1527, Henry VIII, the King of England, tried to have his marriage to his first wife, Catherine of Aragon, annulled by Pope Clement VII, so that he could marry Anne Boleyn . This did not succeed, and in 1533, the king broke away from the Roman Catholic Church, thus allowing him to divorce his wife without needing the consent of the pope.

Henry with Anne Boleyn, by George Cruikshank, 19th century.

Henry with Anne Boleyn, by George Cruikshank, 19th century. ( Public Domain )

Ironically, the newly-formed Church of England was even more severe than the Catholic Church when it came to the issue of divorce. For instance, under the consanguinity rules of cousinhood, the Catholic Church allowed a marriage to be annulled if the couple were found to be distantly related. This, however, was prohibited under Henry’s new religious institution. Moreover, the only way to obtain a divorce was via an act of Parliament. In other words, a divorce could only be obtained if it were voted through by both the House of Commons and the House of Lords.

1846 painting ‘The Divorce’ by Jan Hendrik van de Laar.

1846 painting ‘The Divorce’ by Jan Hendrik van de Laar. ( Public Domain )

Caroline Norton Advances Divorce Rights

Things began to change around the middle of the 19th century, when the Matrimonial Causes Act 1857 was passed by the Parliament of the United Kingdom. In effect, this Act established a model of marriage that was based on contract, rather than on sacrament, and shifted matters of marriage and divorce from the jurisdiction of the ecclesiastical courts to civil ones. This Act came into being thanks to one woman - Caroline Norton - a social reformer and writer.

Scene from ‘Marriage à-la-mode’ by William Hogarth showing a marriage settlement

Scene from ‘Marriage à-la-mode’ by William Hogarth showing a marriage settlement. ( Public Domain ) A new form of marriage, one based on contract, emerged.

Caroline was trapped in an unhappy marriage, as she held diametrically opposed views from those of her husband. For instance, Caroline favored social reform, whilst her husband was a staunch Tory, serving as the MP for Guildford between 1826 and 1830. Moreover, George had been abusive to Caroline, beating her, barring her from the family home, and even denying her access to the children. Realizing that the law was not protecting women like herself, Caroline resolved to take up arms against this gross injustice. Her years of tireless campaigning eventually resulted in the passing of the Matrimonial Causes Act 1857.

Settling a Divorce

It was a gradual process until divorce settlement took on the form that it has today. For example, a private members’ bill in 1923 made it easier to seek a divorce for adultery, though it still had to be proven. Another significant milestone was achieved in 1969, with the passing of the Divorce Reform Act, which allowed couples to divorce after they had been separated for two years (or five years if only one of them wanted a divorce). Additionally, in 1984, the bar on divorcing before three years of marriage had elapsed was lowered to only a year.

Scene from ‘Marriage à-la-mode’ by William Hogarth. The marriage is suffering - the husband and wife are going their separate ways - as evidenced by their state of overindulgence and disinterest in one another

Scene from ‘Marriage à-la-mode’ by William Hogarth. The marriage is suffering - the husband and wife are going their separate ways - as evidenced by their state of overindulgence and disinterest in one another. ( Public Domain )

Today, divorce has been made legal in almost every country in the world. In 2011, there were only three countries in the world where divorce was illegal – Malta, the Vatican City State, and the Philippines. Divorce became legalized in Malta in October of that year, following a referendum that was held earlier in May, whilst the Vatican City State, being an ecclesiastical state, and composed mainly of celibate men, has no procedures for divorce. Thus, at present, the Philippines is the only other country in the world where divorce is still illegal.

Top image: ‘The Divorce of the Empress Josephine’ (1843) by Henri Frédéric Schopin. Source: Public Domain

By Wu Mingren

References

Cambridge Family Law Practice, 2012. A brief history of divorce. [Online]
Available at: http://www.cflp.co.uk/a-brief-history-of-divorce/

Caulin, V., 2017. This is the Last Country on Earth Where Divorce is Illegal. [Online]
Available at: https://theculturetrip.com/asia/philippines/articles/this-is-the-last-country-on-earth-where-divorce-is-illegal/

Foreman, A., 2014. The Heartbreaking History of Divorce. [Online]
Available at: https://www.smithsonianmag.com/history/heartbreaking-history-of-divorce-180949439/

Hudson, C., 2008. The wife who changed history - by asking for the first divorce. [Online]
Available at: http://www.dailymail.co.uk/femail/article-508936/The-wife-changed-history--asking-divorce.html

Talley, J., 2011. 5 Countries With Strange Divorce Laws. [Online]
Available at: http://stories.avvo.com/relationships/divorce/fivestrangedivorcelaws.html

The Guardian, 2009. A brief history of divorce. [Online]
Available at: https://www.theguardian.com/lifeandstyle/2009/sep/19/divorce-law-history

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