Burnt bedclothes, flying fists and impotence: Women and divorce, 1858

The truth of a marriage, particularly in the 19th century, was often kept behind closed doors. The mud-slinging, he/she/they-said recriminations of a relationship falling to bits can be incredibly tedious, so maybe that’s a good thing.

Historical divorce cases, however, can offer an eye-opening snapshot of mid-century Victorian domestic life, and crucially what relationships were like for women, and what behaviour was considered acceptable. The 145 divorce cases filed in the first six months after an 1857 change of legislation show adultery aplenty (some in brothels), drinking, gambling, bargaining, pleas, bigamy, beatings, throwing of crockery and furniture, various people who nipped out for something and then turned up in New York or New Zealand or Australia, arguments over money and children, and even someone who couldn’t get it up.

There are various widely-accepted broad brushstrokes about divorce at that time. It’s generally known as the preserve of the rich, and was harder for women than men (it was actually virtually impossible for women to bring proceedings until early 1858). Oral histories recount that the stigma followed people around. This persisted into the 20th century and beyond. As 1980s children, we were encouraged to pity peers of “broken homes”, with added undertones that it was somehow the woman’s fault. An older work colleague (c.2006) confided that the village women were suspicious of “our local divorcee” because she was after their husbands – the idea that divorcees, having had regular sex, would chase it again. ONS statistics for 2019 showed that 42% of marriages ended in divorce, so it’s now commonplace, if no less sad.

In terms of women being able to kick their errant man to the curb, the first leap forward was the Matrimonial Causes Act 1857. Before this, divorce was only available to men, had to go through ecclesiastical courts (it was considered a sacrament, whereas the new Act made it a contract), and if someone wanted to remarry it required a complicated annulment process or a private bill in the House of Commons, which both cost a lot of money – hence it was something rare.

The new Act was seen through parliament partly via the campaigning of Caroline Norton (who was awarded a London blue plaque on her former home by English Heritage in April 2021), this came into effect on 1 January 1858. Of those 145 cases, from January to June, 92 of them were brought by women. These women were, effectively, pioneers. Paving the way for other unhappily married couples to try to change their circumstances, though not always successfully.

Petitioner for action under first six months of Matrimonial Causes Act 1857. Source: England and Wales Civil Divorce Records 1858-1918

The new act also meant it wasn’t for just people with stacks of cash. The first of many pauper causes was filed in early May 1858, where Jane Astrope wanted to divorce husband William – and as time went on people on lower incomes saved for years in order to bring their other half to court.

It was still easier for men than women, as all men had to prove was that their wives had taken another lover, whereas a woman had to prove her husband had cheated on her AND beaten her or left her or married someone else too.

Divorce wasn’t the only option under this new act, or even the most common. You could petition for a legal separation (a “Judicial Separation”) which meant wives could escape the worst flying fists. Or ask the court to force your errant husband home. You could also go for nullity, either because your partner was already married, or it remained unconsummated. Earnings and inheritance acquired since a split could also be protected.

Judgement petitioned for by wife under first six months of Matrimonial Causes Act 1857. Source: England and Wales Civil Divorce Records 1858-1918

A prime example of one of these cases is Mary Jane Pascoe, originally from Dublin, who sought to rid herself of husband Charles. He’d originally been a ship broker and commission agent in Dublin, which was a good middle class occupation but not that rich. He had run off to Australia around 1851 to become a miner, presumably as part of the gold rush.

Mary Jane Pascoe, née Wynne, and Charles Pascoe

Mary Jane’s petition of late May 1858 claimed cruelty – he’d given her a venereal disease (probably syphilis).

“… your petitioner’s said husband being infected with the Venereal Disease communicated it to your petitioner by reason where of your petitioner has undergone great bodily pain and her health has been greatly injured.”

Pascoe vs Pascoe, P00012, 1858, England and Wales Civil Divorce Records

Passing on the pox was considered cruelty. Her petition also alleges that had it off with their servant, and another woman in Liverpool, in addition to now being in Australia and having deserted Mary Jane. This should have been enough grounds to meet the criteria set out for women in the 1857 Act. Marriage was now a contract in the eyes of the law, not a sacrament, so proceedings were heard in civil courts.

The court would have attempted to contact him in Australia for an answer. It appears they didn’t get the answer they wanted. Charles filed for divorce from Mary Jane himself from the state of Victoria in 1876. He said they’d written to each other until 1862, and he’d constantly offered to bring her out to join him, but he’d then heard nothing until 1874. His brother-in-law had told him, from his home in Maryland, USA, that Mary Jane had had a child by William Foy of Trinity College, and now he wanted his marriage to end. Mary Jane died in Dublin in 1877, while they were still officially married. This put an end to the matter.

In fact, the first case brought in by a woman after the legislation was introduced fell short of the differences between men and women filing the cases. Ann Deane, née Saunders, of Reading in Berkshire filed for divorce from her husband Arthur on 6th February 1858 (there were three cases in that January, but they appear to have been originally operating under previous rules, and their outcomes are far from clear). They’d married in 1835, and had had nine children. She alleged that her husband frequented bawdy houses, and cheated on her with an actress. However, as her grounds for divorce were merely that he was a cheating git, and he hadn’t beaten her up too, the case could not progress.

We are also talking about an era where marriage was considered sacred and ordained by God, and many women would not have wanted it to officially end even if things had completely gone south. Therefore many women used the other options – protecting property and earnings from the date her husband left, so she wasn’t liable for his lifestyle or debts. A judicial separation, usually used where the beatings were vicious but he hadn’t actually cheated on her, meant they legally separated but her husband still financially supported her. The inequality lasted until 1923, when women could bring divorce proceedings just for adultery alone.

Protection of property and earnings

Sophia Moore, from Portsmouth, was the first of 26 cases in that first six months who wanted to protect her property and earnings from her errant husband. Under the law at the time – the Married Women’s Property Act was 12 years away – once married, any property or money or earnings that a woman had instantly belonged to her husband. So, even if he’d deserted her, as Sophia’s husband Thomas had 14 years earlier, any earnings or property that Sophia had acquired since were legally his. Had he got himself into debt, Sophia would have been legally liable to pay it off.

As it happens, Sophia and Thomas’s case is a fairly tame one for the period. He was steadily being promoted up the ranks of the Royal Marines, so spent large periods of time away at sea. They’d married in 1833, he’d formally deserted her in 1844, but until January 1858 had done the “right thing” and maintained her with a monthly allowance. He’d stopped in January, so in February Sophia entered a plea for her earnings and property from this date to be legally her own. It may be that she’d come into some extra money from the death of a parent. The case didn’t make the papers, but she appears to be successful as she’s on the 1861 census in Paddington living with a servant, and says she’s independent. However, she also claims to be a widow on that document, which she isn’t as Thomas was alive until 1884, and it may be that she used that status to bigamously marry again as she disappears from view thereafter.

Property cases could be far more salacious than this one. Later that February Mary Cartwright of Westminster also filed a similar petition against her husband Edward. However, he was a habitual drunk who’d deserted her in 1839 and didn’t provide anything by way of support. He reappeared in 1844, after the death of her mother, demanding money that she’d just inherited, took it, and then disappeared again. She hadn’t seen or heard anything of him since 1845.

An Act of Parliament in 1864, just six years later, changed the powers of women protecting their property and earnings to make them more difficult to achieve, by allowing a husband to apply for an order to have this protection discharged. This didn’t get repealed for more than 100 years.

Judicial Separation

Harrowing tales of Victorian family life can often be found in the Judicial Separation petitions. These were invariably (though not always) petitioned for in the cases of extreme domestic violence, but where there was no firm evidence of the husband’s adultery so divorce wasn’t possible. In addition, an amount of beating was considered acceptable in this society, where people were regularly physically punished, and a husband could “discipline” his wife – invariably with his fists or a stick. Emotional abuse was also common but wasn’t regarded as cruelty. However abhorrent this sounds to our modern sensibilities, this was parr for the course at the time.

Where the Act was able to help women was where the cruelty veered into something more than the occasional clout. Interestingly though, the first attempt at Judicial Separation (JS) didn’t feature any violence whatsoever. On Friday 5th February gentleman’s daughter Ellen Martin of Russell Square asked for a JS from husband John (who had no profession whatsoever). He married her the previous summer but didn’t spent a great deal of time with her. He left, took up with someone called Kate, and went to Brighton with her instead posing as husband and wife. He denied the accusations, however, and the case appears to have been dropped.

The second JS case through the courts on 9th February, where Londoner Sarah Peacock née Cuthbert accused her husband Alexander of adultery and requested a separation, again didn’t feature any violence. Sarah got the judgement she wanted in the end.

The third JS, however, is grim reading. This was filed on 20th February, and became the first jury case heard under Act when it went to court in May. Louisa Tomkins née Hudson left Farringdon Market potato salesman Thomas Tomkins in January after a catalogue of violence and threats. He would frequently use his fists on her if he felt she needed some chastisement and this situation had continued since 1851.

… the said Thomas Tomkins at Shoe Lane Fleet Street in the City of London grossly abused and threatened your Petitioner and beat her and otherwise treated her with great cruelty whereby her health was materially affected.”

Tomkins vs Tomkins, T00006, 1858, England and Wales Civil Divorce Records

“The petitioner having being sworn, deposed that her husband was a very ill-tempered person, who was in the habit of knocking her about when he was in a passion. On one occasion he had beaten her because she said that a woman whom he had called a respectable sort of person was not so. They had had quarrels about another woman, towards the child of whom her husband made a regular payment. Her husband threatened to bring the child into his house, in order to punish witness. If she ever made a mistake in her accounts he would abuse her; and on one occasion, when she had returned late from Woolwich, he beat her with his fists.”

West Middlesex Herald, Saturday 8 May 1858

In January 1858 he’d held her down by her hair and had beaten her around the head, from which she was still suffering in court, and threatened her with further violence too. She had left him, and had gone home to her mother, taking her children with her. Thomas insisted that this was untrue and asked the court to force her back home. The court for Louisa, and she received her JS. The judge in the case said that he wanted future cases like this one to be heard behind closed doors. As to what happened to Louisa next, the records have remained elusive.

Nullity

A case of impotence led to a petition for the marriage to be annulled on 12th February 1858, a Wednesday. French citizen Alphonsine Isaacson had married British husband Ebenezer Silver twice, as was required by French law, once at Paris town hall and again at the Synagogue. However, the marriage was never consummated due to his supposed lack of ability to rise to the occasion (she entreated the court to examine his reproductive organs, to see she was correct), and he’d left her.

That at the time of the civil and religious marriages the said Ebenezer David Silver was and has ever since been and now is naturally and incurably impotent and incapable of generation as on due examination of him will appear.”

Isaacson vs Isaacson, I00001, 1858, England and Wales Civil Divorce Records

She believed he was living in Cheapside. The case does not appear to have made the newspapers. Ebenezer, a doctor with the East India Company, was an expert on diseases of the anus and rectum, and when Alphonsine tried again in 1869 for a separation on the grounds of cruelty he claimed he was previously legally married to someone else and that there wasn’t a case to answer.

Restoration of conjugal rights

There were four cases for restoration of conjugal rights brought by women too, in that first six months. The first of these was on 2nd March, where Eliza Kyan of Brompton petitioned the court to force her husband John back to live with her and their children, him having refused to do so since November 1857. Restoring him to the marital home would have meant Eliza had help parenting the kids, and also would have known that her financial situation was stable, whatever state their marriage was in. Divorce was not an option for this pairing, as they were both Catholic.

Divorce with adultery and desertion

As for the 22 wives who attempted to get a divorce in that first six months, two were automatic fails as there wasn’t enough evidence. The first one filed, on 8th February 1858, which successfully went through the courts was the petition of Esther Pyne née Varley, who had grounds via adultery and desertion of above two years. Her husband of 30 years, George, a renowned watercolour painter, had gradually put the couple into debt due to an addiction to gaming and gambling, and was unable to support them. He’d also committed adultery while drunk, went to France without her to try to earn his living again and deserted her, leaving her without income. Esther had relied upon her father for support, and started teaching music, though George would occasionally write to her and ask for money. Ten years later, and based in Chelsea, she discovered him living in Oxford with another woman and their four children. George didn’t contest Esther’s petition, and the divorce was granted. She remarried the following year, to solicitor Charles Willesford, and lived with him in Devon to the end of her days.

One of Esther’s husband George Pyne’s paintings, of Oriel College, Oxford.

Divorce with adultery and bigamy

The first divorce case brought by a woman where he’d cheated on her and married someone else too was filed in the second week of February, and included desertion for a three-pronged attack. Grace Robotham, née Halford, married Thomas in Clerkenwell in 1849, and they had two daughters. However, he also married Leonora King in 1856, while Grace was still alive, and to avoid the consequences fled to New York. She asked for custody of the children, and for her marriage to end – but as Thomas was abroad the court sought him out for a possible defence, indicating that they’d unusually take his father’s word instead if they were unable to locate him. The case got no further mention, but there’s no sign of Thomas or Leonora in the UK from this point onwards, and Grace and her daughters went to live with her parents in Clerkenwell. Grace reverted to her maiden name, indicating that the divorce probably went through, but called herself a widow.

Divorce causes petitioned for by wife under first six months of Matrimonial Causes Act 1857. Source: England and Wales Civil Divorce Records 1858-1918

Divorce with adultery and cruelty

The first cases of a wife petitioning for divorce with adultery and cruelty took longer to come through the system. Jessie Sudlow attempted to use cruelty alongside adultery in her petition against husband Alfred in early March 1858, but it turned out that Alfred had died before the case was heard in April. Therefore Jessie was a widow and didn’t need a divorce. Emma Weatherill also included cruelty in her case against deserted and adulterous husband George, who was in Sydney when she filed on 13th April. The cruelty wasn’t particularly clear cut, and it was felt there was enough evidence on desertion and adultery, so that part of the case was dropped.

The first woman’s divorce case petitioned for that included cruelty as part of the case was brought by Eliza Brunell, wife of early photographer Theodore, who had famously taken photographs of Queen Victoria and Prince Albert’s children in 1852.

Theodore Brunell’s portraits of Queen Victoria’s children

Widowed Eliza, née Bush, who kept an inn at Weymouth that still exists, had married second husband Theodore in January 1857. In the 17 months before she filed for divorce, he’d not only visited houses of ill-fame, and committed various acts of adultery, but had also assaulted a little girl by hitting her with a stick and was serving time when she filed for divorce. His catalogue of vile behaviour towards Eliza is extreme.

“The said Theodore Brunell spit upon your Petitioner and used and applied to her disgusting and obscene names and language and threatened to set fire to the House where your Petitioner was then residing and threatened never to have any peace with your Petitioner, and on… (6.1.1857)… the bedclothes of your Petitioner were found burnt, and your Petitioner verily believes the same to have been burnt by the said Theodore Brunell for the purpose of annoying and intimidating your Petitioner.”

Brunell vs Brunell, B00012, 1858, England and Wales Civil Divorce Records

He also spat, threatened her with knives and various dinner utensils, cut her, and hit her with a heavy stick in public. Within 20 days of the marriage they weren’t living together anymore.

Eliza got her divorce, granted in May 1859, and remarried soon after to James Board – who moved into the pub to help her run it, and they had a whole ream of children. Theodore continued on his downward spiral, and on the 1861 census he’s in the police jail cell, coincidentally next door to Eliza’s pub. He committed suicide a few months later. Eliza lived until 1875.

Mud-slinging apart, it’s hard not to be struck at just how human the lives are we see within these legal pages. The Victorian age is so often characterised as stilted and an attempt to live good, pure and Godly lives, enhanced by the stiff sepia poses of their portraits. If it wasn’t for obvious colloquial language differences, and evolved societal norms, you could quite easily see these break-ups being discussed over a bottle of prosecco at a top London bar. Time may have moved on, and we now wouldn’t accept some of the things that happen in a marriage – e.g. flying fists – and rightly so, but people are still people.

Caroline Norton’s story and campaign may have spearheaded change, but the cases of Jane, Mary Jane, Ann, Sophia, Mary, Ellen, Sarah, Alphonsine, Louisa, Eliza Kyan, Esther, Grace, Jessie, Emma, Eliza Brunell and the rest of the 92 women were all pioneering in their own way and helped to open up legal proceedings and recompense for the women who followed. There’s no doubt that the lives of the wives may have improved in the cases petitioned for by the 53 husbands in the first six months of the act. But these women were using the new legislation for themselves, and in many cases winning.

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