Unhappy differences: English deeds of separation and marital breakdown, c. 1650-1900

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University of New Brunswick


In eighteenth- and nineteenth- century England, the family was considered the bedrock of society - instability within the family was viewed as a threat to the future of the nation. Because intact marriages were considered so fundamentally important to the prosperity of the state, spouses was expected to fulfill their respective roles as husband and wife even when they both preferred to put an end to their union. For that reason, divorce and judicially sanctioned separation were recognized only in very narrow circumstances - situations in which one party was deemed to have so badly violated his or her obligations under the marriage contract that it was considered unjust to require the other spouse to continue to uphold his or her end of the bargain. Evidence of adultery, cruelty and desertion was considered objective proof that a marriage had failed to fulfill its intended purpose. Those whose marriages broke down for other reasons had no access to judicial separation and divorce, regardless of how unhappy or unstable the union. In spite of prescriptive ideals that relegated husbands and wives to very circumscribed roles within the family, many historians have determined that reality seldom, if ever, reflected the ideal. English couples ordered their households and divided power between them in ways that suited their individual needs and values. My research into the nature and purpose of separation by private contract takes this inquiry one step further, and proves that many couples chose to separate for reasons not recognized by judges and lawmakers. And those who did possess the requisite grounds often rejected the legal process available to them and turned to deeds of separation as a more attractive alternative. My work demonstrates that, not only was separation by deed far more private and less expensive than judicial separation and divorce, but, because the contract represented a private agreement between the parties, arrangements for child custody, support and the division of property could be drafted to conform with the individual circumstances of the family. Often, these arrangements stood in stark contrast to what would have been ordered if the matter had been litigated.