Outrages: Sex, Censorship & the Criminalisation of Love and Wolf’s Consideration of Divorce Law in the Nineteenth Century
Deborah Siddoway MA LLB (Hons)
Naomi Wolf’s book Outrages: Sex, Censorship & the Criminalisation of Love, in its discussion of the Divorce and Matrimonial Causes Act 1857 (“the Divorce Act”), if nothing else demonstrates the dangers of writing about the law in isolation from the extant legal framework that existed at the time the legislation was enacted. Her consideration of the Divorce Act is flawed.
From the outset, the title of the chapter where she considers the Divorce Act is misleading, with ‘The Invention of Civil Divorce’ suggesting that divorce, as a civil procedure to dissolve a marriage, did not exist prior to the enactment of the Divorce Act. Further, in the opening paragraphs she asserts that before 1857, civil divorce did not exist in Britain, and that ‘obtaining a divorce through the Church of England was the only option available’.
This is simply not the case. Since the 1690s, individual exceptions to the principle of the indissolubility of marriage had been made by Parliament. Importantly, and contrary to Wolf’s assertion, the church had no power to dissolve marriages. The Church could only pronounce for a type of legal separation that did not terminate the marriage. The power to pronounce for a divorce that dissolved the marriage vested solely in Parliament. In short, divorce did exist as a secular or civil procedure prior to the enactment of the Divorce Act.
The enactment of the Divorce Act did not come about in insolation, nor, as Wolf suggests did it come about on account of a ‘social reassessment’ that prioritised the policing of sexual relationships. Indeed, the Divorce Act came into being on account of the overriding imperative of the legislature to seek reform across the whole of the extant legal framework of the early nineteenth century, encompassing reforms across a broad spectrum of life, including reform of the criminal law, and the introduction of a modern system of company law. These reforms of the mid-nineteenth century would culminate in the passing of the Judicature Act 1873. This Act would completely reorganize the chaotic judicial system that had evolved in England. It is no coincidence that at the same time that the Divorce Act came into force, the Court of Probate was also created pursuant to the Court of Probate Act1857. This Act, together with the Divorce Act, in some sense, could be seen as a dress rehearsal for the reforms that followed, as it was the first major step towards eliminating conflicting jurisdictions and rival courts.
The 1850s, following on from the ‘Hungry Forties’, was a time of spectacular economic growth and prosperity, and was a fertile ground for law reformers to agitate for change. Gladstone, writing to Lord Aberdeen in 1857, stated that law reform, one of the ‘great subjects of public policy’ was ‘within reach’. A desire to reform the law generally, and streamline the judicial system was the underlying motivation of the enactment of the Divorce Act. It had been some years in the making.
In 1850 a Royal Commission was appointed to examine the state of the laws and procedures connected with divorce and matrimonial causes, and more particularly, into the mode of obtaining a divorce à vincula matrimonii, which was an entire dissolution of the bonds of marriage, and was the only form of divorce that would sever the matrimonial tie freeing both parties to the former marriage to marry again. Cretney argues that the reason that the legislature turned to the issue of matrimonial causes was not so much due to abstract issues of the injustices associated with obtaining a divorce, but that the issue arose as a direct consequence of the need to strip the jurisdiction over probate matters from the ecclesiastical courts. As Cretney states, the legislature had identified a ‘pressing need, highlighted by the growth in personal wealth associated with industrialisation, to get rid of the ramshackle probate jurisdiction exercised by the 350 or so ecclesiastical authorities and to replace it with a more efficient system of dealing with deceaseds’ property.’ This they did by creating the Court of Probate. It is worth noting that the probate jurisdiction was one of the more lucrative areas of the law and this cannot be understated in looking at the motivations underlying the reform of probate law. In reaching the conclusion that the ecclesiastical courts should be stripped of their jurisdiction over probate, this, in turn, raised the question of what to do with the remainder of the non-doctrinal jurisdiction of the ecclesiastical courts, that is, the law of matrimonial causes. This was the underlying rationale for establishing the Royal Commission to look into divorce.
The Royal Commissioners, in examining the law of divorce, first restated the current status of the law, noting that divorces were of two kinds, one partial, and one total:
Partial divorces are called Divorces à mensa et thoro, because they separate the married parties from each other’s society without dissolving the marriage union. Total Divorces are called Divorces à vincula matrimonii, because they dissolve that union altogether, either on the ground of some antecedent incapacity which rendered the contract void from the beginning or on the ground of some supervenient cause, which having arisen subsequent to the marriage justifies the parties in desiring to put an end to it.
However, while these two types of ‘divorces’ did exist, until 1 January 1858, when the Divorce Act came into force, English law did not provide for judicial divorce. As the Commissioners noted, the contract of marriage was indissoluble and there were no means of putting an end to it within any English court.
A strange anomaly therefore existed in that both the common law and ecclesiastical law and practice in England did not recognise divorce, although a legal separation could be granted by the ecclesiastical courts through the divorce à mensa et thoro, or a separation from bed and board. Despite the use of the word ‘divorce’, a divorce à mensa et thoro was not an absolute divorce as we now understand that word and it did not terminate the marriage. As the Commissioners concluded, this type of divorce was little more than a simple separation in the eyes of the law.
Wolf has failed to make clear that the word ‘divorce’ had a different meaning in the mid-nineteenth century to what we now understand it to mean. The word divorce is derived from the Latin ‘divortium’, meaning a separation, often associated with divorce, but the word could be used in a range of ways, for example, the point of separation in a road, where it divided into two, forked roads. The word divorce, at the time, was not intended to convey the concept of a severing of the matrimonial bond. Instead, it was used to denote a separation. This understanding of the word ‘divorce’ only evolved following the enactment of the Divorce Act.
Prior to the enactment of the Divorce Act, the divorce that did terminate the marriage, a divorce à vincula matrimonii, was recognised by the legislature, with an Act of Parliament the only mechanism by which a marriage could formally be dissolved. This was a legislative process, not a judicial one, with Parliament stepping in to provide a remedy where the general law had failed to do so, in those cases that warranted its ‘interference’.
Wolf was correct in her comments regarding the expense of obtaining a divorce. It was a costly process, with multiple proceedings required before the dissolution of the marriage could be pronounced, and it was only available to someone where their spouse had committed adultery. A divorce under this legislative process was restricted to cases where there was evidence of adultery, unless the petitioner was female, in which case she needed to demonstrate adultery aggravated by incest, cruelty, bigamy, rape, sodomy, bestiality or desertion.  It is difficult to reconcile Wolf’s assertion that there was ‘an ever-heightened spectacle of alarm about sodomy’ given that it already existed as a ground for a female to petition for divorce.
There was also, contrary to Wolf’s contention, comparatively little public appetite for judicial divorce. What there was demand for, however, was legislation to tackle married women’s property rights. Coinciding with this new economically buoyant decade, feminism as an organized movement made its appearance in England, with the concept of marital unity a focus for feminist concern. The first priority of this new feminist movement was to reform the laws relating to the property of married women, and there was popular support for this aim.
In her analysis of the background leading to the enactment of the Divorce Act, Wolf conflates the campaign for reform of the property rights of married women, with the campaign for reform of divorce laws. Yet the two were in direct competition for legislative force. In February of 1857, Lord Brougham introduced a Married Women’s Property Bill into the Lords for debate. Debate on this bill, however, was almost immediately adjourned, and then permanently abandoned following the resignation of the government over Palmerston’s foreign policy. After the election Sir Erskine Perry introduced a further married women’s property bill into the Commons in May of 1857. He would go on to point out, in direct contrast to Wolf’s assertion that ‘twenty-six thousand men and women signed a petition pressing for the divorce bill,’ that not a single petition demanding reform of divorce law had been addressed to the Commons, whereas a petition for comprehensive reform of matrimonial property had attracted over 25,000 signatures, ‘including the most distinguished names in literature, art and society’. He believed that reform of matrimonial property law would remove the demand to tamper with the law relating to the indissolubility of marriage.
However, Perry and the feminist movement were blindsided when the Palmerston government pushed through the bill to reform divorce law, which was passed on 28 August 1857. What the 1857 Act did was to codify and simplify the procedure by which divorce could be obtained and vest jurisdiction to grant a divorce to the newly created Court for Divorce and Matrimonial Causes (the “Divorce Court”). However, the Divorce Act, as it was passed, contained some sections specifically considering the issue of the property of married women, and in including these provisions, carried over from the 1856 Bill, protecting the property and earnings of divorced and judicially separated women, though not married women generally, Parliament effectively killed further efforts by Leigh-Smith Bodichon and her committee. As Mary Poovey observes, the Divorce Act:
did not disturb either women’s relation to property or the sexual double standard. It did not give all married women equity rights over property, but instead addressed only the most egregious injustice; the case of the separated wife who had no defence under common law.
As Poovey goes on to conclude, by dealing with the property question in a very limited way, the debate concerning ‘the legal autonomy of women was foreclosed’ and ‘the assumption on which middle-class identity was based’ was ‘ratified’. The reform of married women’s property generally was derailed by Parliament with the passing of the Divorce Act.
The Divorce Act was not revolutionary and maintained the status quo, nor did it come about in response to the ‘campaigns against heterosexual men’s perfidy,’ as Wolf claims. For the most part, the procedural reforms introduced by the Divorce Act confirmed the contractual nature of marriage, and state sanctioned the gender-based assumptions that underlay the marital relationship in the nineteenth century. It did nothing to dismantle the ‘foolish and cruel’ doctrine of coverture. Nor did it, as Wolf claims, ‘end the sexual double standard that gave heterosexual men privileges above those assigned to their wives’. Section 27 of the Divorce Act specifically preserved the sexual double standard that was already in existence. The issue of married women’s property rights had been given a small concession with the Divorce Act in such a way as to stall any further progress on the issue. The married women’s property issue would not feature in parliamentary debates again until 1868 when the Married Women’s Property Bill was introduced into Parliament, with the Married Women’s Property Act 1870 being passed and coming into force on 9 August 1870. As Sir Perry was later to recall, the passing of the Divorce Act, ‘took the wind out of our sails’.
There had been no popular movement for divorce law reform, and it is also possible that the Divorce Act was pushed through the Commons simply to enable Palmerston to show his strength against the opposition of Gladstone, Disraeli and others. Despite this, by specifically incorporating provisions protecting the property rights of married women, it served as an expedient avoidant for dealing with the larger issue of married women’s property rights and the rights of women generally, thereby delaying full proprietary equality for women for decades. It was a way of appeasing the early feminist movement, by conceding some of what had been campaigned for, without having to turn the legislative mind fully to the vexed question of women’s rights. In that sense, while the Divorce Act is often viewed as the first step in the recognition of women’s rights, it also, as Allen Horstmann notes in his work on Victorian divorce, ‘silenced feminists’, preventing any further inroads into the full emancipation of women for some time.
The Divorce Act also allowed Parliament to take the first steps towards rationalising the whole of the legal system by streamlining the judicial process. Because this is what the central concern of the Divorce Act was. As the Commissioners made clear at the time that they had published their report, all of the principles which governed the law of divorce prior to the Divorce Act were of the ‘soundest wisdom’ and the Divorce Act, as it was passed, preserved those underlying legal principles, while codifying the existing law, and simplifying the procedure by which a divorce could be obtained, including removing the requirement for the husband to commence separate criminal conversation proceedings prior to applying for a divorce. It did not legalise or secularise divorce, although one of the consequences of the codification of the law was that divorce became more accessible.
In discussing the Labouchere Amendment in relation to ‘Outrages on decency,’ Wolf states that this ‘piece of legislation is often misread, especially by literary historians,’ a phenomenon she explains by reference to a failure to understand the historical context in which the Labouchere Amendment came into being. Unfortunately, the same criticism can be made of Wolf in her consideration of divorce law. Her failure to properly contextualise the nature and legal status of divorce prior to the enactment of the Divorce Act means that her analysis of it is deeply flawed, and the conclusions she reaches regarding the Divorce Act, and particularly, that the Divorce Act ‘reconstrued consensual sodomy as directly undermining the patriarchal family’ cannot be considered to be reliable.
 Naomi Wolf, Outrages: Sex, Censorship and the Criminalisation of Love, (London: Virago, 2019).
 Wolf, p. 38.
 Lawrence Stone, Road to Divorce: England 1530-1987, (Oxford: Oxford University Press, 1992), p. 346.
 Wolf, p. 51.
 Prisoner transportation was brought to an end pursuant to the Penal Servitude Act1853, compulsory policing was introduced throughout England and Wales pursuant to the County and Borough Police Act 1856 and death penalty offences were reduced to one (murder) pursuant to the Offences Against the Person Act1861.
 The Limited Liability Act1855 and the Joint Stock Companies Act1856 taken together formed the foundation of modern UK company law first codified pursuant to the Companies Act1862.
 Stephen Cretney, Family Law in the Twentieth Century: A History, (Oxford: Oxford University Press, 2003), p. 162.
 Lee Holcombe, Wives and Property: Reform of the Married Women’s Property Law in Nineteenth-Century London, (Toronto: University of Toronto Press, 1983), p. 13.
 The Gladstone Diaries Volume V 1855-1860, HCG Matthew (ed), (Oxford: Clarendon Press, 1978) p. xxiii.
 The Gladstone Diaries Volume V 1855-1860,p. 211.
 The Commission consisted of Lord Campbell, Dr Lushington, Lord Beaumont, Lord Redesdale, Mr EP Bouverie, the Right Hon SH Walpole KC and Vice-Chancellor Sir William Page Wood (Lord Hatherley).
 Cretney, p. 162.
 First Report of the Commissioners Appointed by Her Majesty to enquire into The Law of Divorce and more Particularly into the Mode of Obtaining Divorces a Vinculo Matrimonii (1853, reprinted 1909), p. 4.
 Cretney, p. 39.
 First Report of the Commissioners Appointed by Her Majesty to enquire into The Law of Divorce and more Particularly into the Mode of Obtaining Divorces a Vinculo Matrimonii, p. 6.
 William Smith, Latin-English Dictionary, (London: John Murray,1866), p. 341, digitized at https://archive.org/details/in.ernet.dli.2015.228288/page/n351 [accessed 21 January 2019] ex inf John Marriott, Latin teacher at Windlesham House School.
 Report of the Royal Commission on Divorce and Matrimonial Causes (London: HMSO, 1912), p. 12
 First Report of the Commissioners Appointed by Her Majesty to enquire into The Law of Divorce and more Particularly into the Mode of Obtaining Divorces a Vinculo Matrimonii, p. 6.
 Maeve E Doggett, Marriage, Wife-Beating and the Law in Victorian England, (Columbia: University of South Carolina Press, 1993), p. 18. A divorce under this legislative process was restricted to cases where there was evidence of adultery. The Ecclesiastical courts had more expansive powers to grant a legal separation, the divorce à mensa et thoro, as the grounds for this not only included adultery, but also intolerable cruelty, and unnatural practices. See JJS Wharton, An Exposition of the Laws Relating to the Women of England; Showing Their Rights, Remedies and Responsibilities in Every Position of Life (London: Longman, Brown, Green and Longmans, 1853), p. 450.
 Doggett, p. 100.
 Wolf, p. 48.
 Cretney, p. 94.
 Doggett, p. 86.
 Holcombe, p. 4.
 Mary Lyndon Shanley, Feminism, Marriage, and the Law in Victorian England, 1850-1895, (Princeton: Princeton University Press, 1989), pp. 72-3
 Wolf, p. 49.
 Cretney, p. 165, quoting from Hansard 14 May 1857, vol 145, cols 267-8
 Divorce Act s 6, see Collection of Public Statutes relating to Probates and Divorce 1857-1858, ed. by James Bigg, (London: Simpkin Marshall, 1858), p. 43. All references to sections of the Divorce Act are taken from this Collection, and unless otherwise stated are references to the Divorce Act as it was passed in 1857, prior to any legislative amendments that followed after this time.
 Mary Poovey, Uneven Developments: The Ideological Work of Gender in Mid-Victorian England,(London: Virago, 1989), p. 84.
 Poovey, p. 85.
 Wolf, p. 244.
 Remarks upon the Law of Marriage and Divorce suggested by The Hon Mrs Norton’s Letter to the Queen, (London: James Ridgway, 1855), p. 43.
 Wolf, p. 155.
 Holcombe, p. 93, quoting from the Married Women’s Property Committee Annual Report (1880) 12.
 Cretney, p. 165 and Horstmann p. 77.
 Allen Horstman, Victorian Divorce, (London: Croom Helm, 1985), p. 105.
 First Report of the Commissioners Appointed by Her Majesty to enquire into The Law of Divorce and more Particularly into the Mode of Obtaining Divorces a Vinculo Matrimonii, p. 4.
 Pursuant to s 28 of the Divorce Act, the husband was still required to name the alleged adulterer as a co-respondent to the divorce proceedings, unless the court allowed him not to do so. The wife, by contrast, was only to name the alleged adulterer if directed to do so by the Court. Pursuant to s 33 of the Divorce Act, the husband was still entitled to petition the court for damages from the adulterer, but it was done as part of the divorce proceedings rather than as a separate cause of action.
 Wolf, p. 241.
 Wolf, p. 55.