17 October 2019
By Miranda Marshall, Director, Hayes + Storr.
‘The past is a foreign country; they do things differently there’; so said L P Hartley as the opening lines of his novel ‘The Go-Between’.
I recently heard a presentation which included a run-through of English marriage and divorce laws through the ages. It amused me; and thought it might amuse you. It is truly alien territory.
In the early 7th century, under the code of Ethelbert, the legal penalty, if a man ‘took a maiden by force’, was that he had to pay her guardian (not her) 50 shillings (i.e. £2.50 in decimal money), and afterwards he could buy from the guardian his consent to marry her. Presumably the former-maiden’s value would have been much diminished and it would have been an easy solution for the men. The cost of consent would be 20 shillings (£1) if she was betrothed to another man. We do not know the cost if she wasn’t betrothed. There was a 35 shilling (£1.75) refund if the woman was ‘returned’.
The Welsh laws of the same era stated that the grounds for divorce were leprosy, impotence and bad breath (only one of the three was necessary). There was recognition too of the ‘seven year itch’. On divorce after seven years the money in the marriage was split equally. Before the 7 years the division depended on the woman’s status by birth (regardless of the actual size of the common pool of matrimonial property). This presumably meant it was financially risky for a man to marry a posh but poor young woman – much better for him to find a rich but vulgar girl!
Before the arrival of the Normans, if a woman found her husband with another woman, she was entitled to payment of six score pence (about 50p, I calculate) the first time; £1 the second time; and, on the third time she was entitled to divorce him. If a husband kept a concubine, his wife was allowed to punch her.
After the Norman invasion things got worse.
Under the French invaders, a wife became a ‘sort of infant’ and her legal identity ceased to exist. A husband and wife on marriage became one person and the wife’s property was surrendered to the husband. This included her clothes; and so, the husband would usually give his wife her clothes by his Will; otherwise, presumably, if he died, she would quite literally walk away naked.
Many of Jane Austen’s novels turn on the importance of marriage to save the family fortunes. Land and real property passed down the male blood-line, so that a widow and daughters would be left destitute without a living male protector. This explains Mrs Bennet’s desperation to hunt down husbands for her five daughters in ‘Pride and Prejudice’. True love didn’t come into it.
And so the matrimonial property dark ages continued until the Victorians introduced the Married Women’s Property Acts. There were four of these from 1870 to 1907 and the final one, shockingly, was as late as 1964. Women became legal entities in their own right, could keep their earnings and own property.