Australian Institute of Family Studies- Seminar paper


DIVORCE AND THE STATUS OF WOMEN

Beginnings in Nineteenth Century Australia

Henry Finlay, BA, LLB, PhD
Associate Professor of Law, University of Tasmania
122 Nelson Road, Sandy Bay, Tasmania, Australia, 7006




Presentation to a seminar at the Australian Institute of Family Studies, 20 September 2001




To nineteenth-century feminists the Common Law of England enshrined the subjection of married women to their husbands, making them little better than slaves.
Male privilege and domination began to be eroded in the nineteenth century. It was the Victorians who pioneered the emancipation of women.  Joan Perkin1

Introduction

This paper is concerned with the introduction of divorce into Australia in the colonial era2. Any examination of the origins of Australian divorce legislation must take into account the English Act of 18573 on which it is based. Divorce in Australia thus remained in six separate guises, all of them based on identical principles with a common tradition, although showing some individual variations. By the time the Commonwealth took over the subject of divorce in 19594, a considerable degree of diversity had developed.

Even before there was a law of divorce in Australia, the age-old desire for changing one’s partner saw attempts made to shake off the bonds of matrimony. Even wives, who had grown weary of married bliss with their partners, or because they had been abused or deserted by them, were not free from this desire to change partners.

In England, the old expedient of annulment of marriage, available within the Roman Catholic Church, had almost disappeared with the Reformation. Instead, for the upper classes, divorce by Act of Parliament took its place. At the lower end of the economic spectrum, wife sale became a possible, if ineffective expedient5. The situation in Australia was rather different. None of the colonial parliaments had the power to dissolve marriages. Annulments did happen, but only in rare cases.

By the middle of the 19th century, the unavailability of divorce in England, except for a small wealthy minority, had come to be found unsatisfactory and unjust. Demands for divorce reform and extension were growing. Divorce a vinculo matrimonii, as it was then dealt with, was characterised the influential historian and lawyer, Sir James Mackintosh, as fraught with ‘intrinsic difficulties’6. His comments highlight the ambivalent establishment attitude towards divorce, and the apprehended difficulties to which its introduction were expected to give rise:

The dangerous extremes are, absolute and universal indissolubility on the one hand, which has been found to be productive of a general connivance at infidelity, and consequently of a dissoluteness of manners, and on the other, a considerable facility of Divorce in cases very difficult to be defined — a practice … which would be at variance with the institution of marriage …

To make the dissolution of marriage in the proper case alike accessible to all, is one of the objects to which, in great cities, and in highly civilised countries, it is hardest to point out a safe road.7

As the less desirable consequences of virtually complete unavailability were, however, becoming obvious, the need for divorce on a less restrictive basis than hitherto was now beginning to be understood in England. Nevertheless, for years to come the most obnoxious provision in the only ground for divorce remained. This was the double standard in the ground of adultery. A further consideration that was coming to be increasingly felt were the demands made on the time and resources of the Imperial Parliament. It was felt that it would be more appropriate if a specialist tribunal were available for adjudicating questions of divorce. Bound up with the expense of existing divorce procedures was also the denial of justice to the poor, which had been a concern for years8. In theory, divorce by Act of Parliament was open to anyone who had been ‘wronged’ by the adultery of his or her spouse, by petitioning the House of Lords for an Act of Parliament dissolving their marriage. In practice it was a man’s remedy and a rich man’s at that9. It was extremely expensive and although in theory, like the Ritz, it was open to all, it was used almost exclusively by the wealthy, the aristocracy and the landed gentry. According to John Macqueen, the authority on parliamentary divorce:

Obtaining a divorce by parliamentary process was a luxury which only the extremely rich could afford and even the moderately opulent had to forgo 10

Divorce in England and the double standard

At the very outset, the most controversial aspect of the proposed law of divorce proved to be the double standard in the ground of adultery as between husband and wife. A man was entitled to apply for a divorce for the simple adultery of his wife, while a wife could get a divorce only on the ground of aggravated and repeated adultery by her husband. The rationale for that double standard was based on the biological differences between men and women. But more than that, it was sought to be justified on historical and moral grounds, arising out of a social system dominated by and for a moneyed and landed upper class. The consequence of a wife’s adultery was the danger of ‘spurious offspring’ being introduced by her into her husband’s family, while the husband’s adultery could have no such effect.

Such an attitude put woman in a very special position. On the one hand, it placed her on a pedestal, where she was both untouchable, and also, paradoxically, liable to severest condemnation if she was even merely suspected of straying from the straight and narrow path of uxorial virtue. This served to reinforce a traditional view of woman. Ostensibly she was seen as a being passive, loving and forgiving, whose whole life was completely wrapped up in that of her husband. The fact that she was at the same time a sex object or a breeding machine for her husband and his family was never mentioned in so many words in polite society. Everyone, of course, was very much aware of it and both men and women would discuss her merits, and especially her demerits in that capacity behind closed doors.

On the other hand, she was legally a complete nonentity. Her function in life was to ‘love, honour and obey’. A married woman’s total dependence on her husband was reinforced by a social system that was built upon that dependence. With all her worldly goods she had endowed him. Being under coverture, she was completely under his tutelage without any legal rights of her own. Blackstone’s notorious dictum: that

By marriage, the husband and wife are one person in law; that is, the very being of legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs everything. … So great a favourite is the female sex of the laws of England 11

was a rationalisation in its time. It provided for someone, - the husband, - who could be called to account for any legal liabilities incurred by his wife, in a society in which married women were without disposable means, and without any ability to defend themselves. As for the prevailing social attitude towards the husband-wife relationship among the upper classes, this was described in the ecclesiastical court in 1847:

It is the duty of a wife to conform to the tastes and duties of her husband, to sacrifice much of her own comfort and convenience to his whims and caprices, to submit to his commands and to endeavour, if she can, by prudent resistance and remonstrance, to induce a change and alteration. 12

Even when such dicta were cited later, in changing conditions, they may have pacified the conscience of anyone minded to look somewhat more deeply into the nature of marriage relationships. Notions of gender equality and of social justice would, of course, have been regarded as anachronistic attitudes that were well before their time.

The model wife, then, was based on a legal fiction in a marriage in which nothing ever went wrong, and where the wife was content not to need or want anything that could not and would not be supplied to her by her husband. It was, above all, a class-based model, generated by and for an upper class, of an aristocracy and a landed gentry, being joined by an increasingly wealthy, industrialised middle class. These were whom Engels called the possessing classes13. The family arrangements of the labouring classes and of the poor, on the other hand, were of no significance in the scheme of things.

The double standard in adultery, had been a central feature of parliamentary divorce from its very inception in England in the 17th century, until the enactment of the 1857 Divorce Act. It was intended to satisfy the requirements of those for whom it was designed: the male upper classes. It was to prevent Lady Chatterley from introducing the son of the under gardener into Lord Chatterley’s family and to carry off the family titles and estates. Of something like 260-300 parliamentary divorces granted during the currency of that remedy, only 4 were granted to women14. And given the nature of the remedy, which required no fewer than 3 separate legal proceedings, it was one that only the wealthy could afford. As for the different treatment of the two sexes, the 1857 Establishment did not see it as in the slightest degree out of the ordinary, let alone objectionable. After all, that different treatment arose from attitudes which were inextricably linked with the respective positions the sexes occupied within society, and which were believed to be their appropriate place.

The same procedure did not, of course, apply to the lower classes, who had no political clout and whose opinions were not sought, nor considered to be worth taking into account.

If an example were required that these were the views of the establishment, represented in a Parliament that did not reflect the views, needs or desires of the lower classes, of the poor, and least of all, of women, we need look only at the characteristically didactic views of Dr Samuel Johnson on the subject of adultery. These views were also quoted and frequently referred to, in the House of Lords debates leading up to the 1857 Divorce Act:

Between a man and his wife a husband’s infidelity is nothing. Wise married women do not trouble themselves about the infidelity of their husbands. The difference between the two cases is boundless. The man imposes no bastards on his wife. A man, to be sure, is criminal in the sight of God, but he does not do his wife any very material injury if he does not insult her; if, for instance, he steals privately to her chambermaid; Sir, a wife ought not greatly to resent this.15

These views, so typical of the male establishment in England, were quoted in the parliamentary debates by Lord Lyndhurst, a former Lord Chancellor, who was bitterly opposed to the double standard. Even in England, there was for a considerable time a vocal undercurrent putting forward more sympathetic views and speaking up for those underprivileged under-classes: the women and the poor. Indeed, it was these two aspects of the proposed divorce law, its effect upon these two classes of people, that was the main bone of contention for that vocal minority who opposed its introduction. For example, in 1836, twenty-one years before the 1857 Act, Mr Divett moved against the continuing existence of parliamentary divorce, - particularly in the House of Commons of which he was a member. He protested both against the enormous expense of the proceedings and against the denial of justice to the poor, which they represented. If divorce were to be generally available, he said, it should be invested in some tribunal that was easily accessible to all parties, and where rich and poor could meet on equal terms. Part of the motions that he put, expressly said that the privilege of parliamentary divorce was exclusively afforded to the rich.16

During the English divorce debates of the 1850s, there were influential voices raised in both Houses against the double standard as part of the Act. That opposition came even from those who were opposed a divorce law as a matter of principle, but who saw the injustice of the double standard against the female sex as even more objectionable . When the Bill was in the Committee stage in the Commons, Mr Henry Drummond, the member for East Surrey, moved an amendment as to the wife’s right to a divorce. At that stage, her right was to have been based on her husband’s adultery, coupled with incest, and also with ‘adultery coupled with such cruelty as without adultery would have entitled her to a divorce a mensa et thoro, or of adultery coupled with desertion’. Drummond’s stand was clear

He did not in the slightest degree retract his opposition to the giving of any facilities for divorce a vinculo; but if, as he had no doubt they would, they overruled his opinions, he would then take them upon their own ground and endeavour to get equal justice for the woman. …

His object was to have perfect equality between the sexes. The laws of England were more severe against the woman than were those of any other country in Europe. That House17 was a body of men legislating for women, and they had by a code of their own invention, and for their own purposes, contrived to establish the general notion that unchastity in a man was a much lesser evil than unchastity in a woman. He was ashamed to say that, within the last few days, he had seen letters from fathers to their sons, just grown up, telling them that there was no sin in unchastity in a man, only in a woman; and he had known instances of parents who had gone even further than this in the inculcation of the same principle. He believed that that was the practice of mankind at large, however they might deny it in theory.

Another question which would follow, was as to the care of children. The law, as laid down both by Equity and Common Law Judges was, that a man, however wicked, had a right to the custody of his children, and the Courts could not give them to an innocent woman.18

After quoting from several decided cases illustrative of the point

He now moved the omission of the word "incestuous" and also of the proviso at the end of the clause, his object being to put the man and the woman upon precisely the same footing.19

The amendment was supported, in most forceful terms and at some length, by no less a speaker than Mr Gladstone. Like Mr Drummond he made it clear that he was basically opposed to a law making divorce available at all, but if there was to be such a law, it should deal with men and women on equal terms.

Gladstone first objected to the Attorney-General’s argument that the Bill was only putting into statutory form what was already the law on the subject. It also did something much worse.

I look on the importation of the principle of divorce a vinculo into our law as an evil. … It is not enough to say that the form of introducing the principle will necessarily be the least dangerous by which the number of cases tried will be the smallest, because along with the principle of divorce a vinculo you introduce by the Bill another principle of the utmost importance, and, in my opinion, of the utmost danger–the principle that the rights of men and women, in regard to the highest relations of the marriage contract, are not equal, but unequal.

… I believe that the evil of introducing this principle of inequality between men and women is far greater than the evil which would arise from additional cases of divorce a vinculo…

Gladstone then referred to the principles of the indissolubility of marriage and the equality of the sexes as being both consequences of the Christian religion. After analysing what he perceived to be the basis of male and female attitudes to adultery, which he believed to be less ‘sinful’ in women, he characterised the double standard as a provocative demonstration of male superiority:

I must confess that it appears to me that a measure so framed is not so much designed in the spirit of preventing a particular sin as by way of the assertion – I must add, the ungenerous assertion -— of the superiority of our position in creation. … I do believe that it results from the exclusive possession of power and from the habits of mind connected therewith.

After citing the apparent contradiction in the statements of the Lord Chancellor, Lord Cranworth, who had said, on the one hand, that the law of England did not recognise divorce, and on the other that there was a law of divorce20, he concluded by reading a letter from a woman who described herself as ‘a deserted wife’ and her comments on the Bill:

It is a most unjust and cruel measure, and will, if passed, destroy the sanctity of marriage, and legalise adultery on the part of the husband, by affording no relief whatever to the injured wife, while it visits her dereliction from duty with the greatest severity. Is this fair or just? I am aware that such has been the law of the land for many years past; but as only few have been able to avail themselves of it, its demoralising influence has not been so great as it will be now, when it shall be known through the length and breadth of the land, that man may commit adultery with impunity, and destroy the happiness and break the heart of the woman he has sworn to protect and cherish.

I speak from sad experience, Sir, for my heart has been wrung, and my life embittered hopelessly and for ever by the cruel infidelity of a husband who openly boasted that the laws of England did not recognise adultery on the part of the husband as a sufficient ground for divorce, and that, consequently, it was no sin.

I do not hesitate to affirm that, if this Bill pass, the sanctity and the purity of the marriage tie will be destroyed for ever, and that weak-minded and weak-principled men will quiet their consciences with the tacit permission granted them by Act of Parliament to indulge in a life of profligacy, while the oppressed and helpless wife will, in many cases, be driven to a life of sin, hoping by its excitement to stifle the anguish of a breaking heart.21

Even more emphatic and impassioned were the comments by Lord Lyndhurst in the House of Lords. He took issue with the two most objectionable aspects of the Bill. On the unequal treatment of the sexes, Lyndhurst said:

One of the objections which he entertained to the principles of the Bill, as it stood, was the great inequality which it recognised between the sexes. The inequality was extreme. No extent of adultery on the part of the husband could, according to this Bill, entitle the wife to a divorce; and hence the trite, but not altogether unjust observation, that men made the laws and women were the victims. 22

Lord Lyndhurst’s other main objection was that the law would discriminate against the poor:

Laws, if they were to be respected by the people, ought to be precise, defined, exact, and extended to all classes, embracing rich and poor alike, - for all were equal in the eye of the law, - yet everyone knew that the present system was confined to the wealthy alone, that no person with a moderate fortune could have any chance of success in resorting to it, and therefore, that so far as the mass of the community were concerned, there was no law whatever on the subject.23

These fears were amply justified, and this system of one law for the rich and another law for the poor became firmly entrenched in the law of divorce, - as it had become in other areas of social life. Lee Holcombe quotes a writer shortly before World War One as saying:

Here in England we have one law for the rich and another for the poor, for the average cost of a decree is £100; and a case was recently reported in which a woman had saved up twenty years in order to obtain a divorce.24

This had been the situation ever since the Divorce Court was established, according to R H Graveson:

So far as the mid-Victorian wife was concerned, her access to the new Divorce Court was governed by her financial resources in a far more rigid sense than in the case of her husband, for she remained in the vast majority of cases financially dependent on him.25

And so, to quote O R McGregor:

Thus, by the early twentieth century, there were two systems of legal remedy for matrimonial difficulties in England. Working class women went to the magistrates’ courts and there obtained some 8,000 matrimonial orders every year; their financial betters went to a centralised divorce court and obtained annually some 600 divorces, that is, licences to marry again, and some 80 judicial separations.26

These comments highlight the fundamental class cleavage that was endemic in English society.

Lyndhurst had wanted to add a ground of desertion27. He also quoted the law of Scotland, which had long recognised equal rights for wives28, and the views of several authoritative figures such as Lords Eldon, a former Lord Chancellor, Lord Thurlow, another Law Lord, and Dr Lushington, that well-known Judge of the Ecclesiastical Court dealing with matrimonial disputes, in support of these various propositions.29

But others in the debates took such a strong anti-divorce stance that they regarded amendments like Drummond’s, as well as the arguments of Lord Lyndhurst in seconding them, as weakening any opposition to divorce. Thus Mr Wigram said:

He thought the clause now under discussion fraught with such extreme danger to the morals of society, that he would do nothing to extend its operation, and would not, therefore, support the amendment. Parliament was now, for the first time, about to confer upon the lower ranks the power of divorce, which, hitherto, had been partially exercised by the upper classes only. Now, he believed, that among a large portion of the humbler classes there was quite as much morality as was to be met with in higher circles; but amongst another large section of the lower classes were to be found none of those safeguards of respectability, of morality, and of self-restraint, which public opinion kept up in other quarters30;…

All this was very male centred and class based reasoning. It shows, above all, the dynastic and property oriented character of early divorce, considered solely as an upper class device. It left out any considerations of the feelings of those involved. In its origins, divorce in England was a rich man’s device for ensuring an untainted succession for his lineage and the passing of his property to his sons. The law was simply carrying into effect the prevailing attitude to women’s adultery, but this was in itself a self-perpetuating attitude. Women were the subordinate sex, the ‘weaker vessel’, ‘relative creatures31.

In the end, the views of the establishment prevailed. The Lord Chancellor, Lord Cranworth, when introducing the 1857 Divorce Bill in the House of Lords, expressed the rationale in these terms:

Without entering into any discussion of the question upon moral or religious grounds, every man must feel that the injury was not the same. A wife might, without any loss of caste, and possibly with reference to the interests of her children, or even of her husband, condone an act of adultery on the part of the husband; but a husband could not condone a similar act on the part of a wife. No one would venture to suggest that a husband could possibly do so, and for this, among other reasons: ... that the adultery of the wife might be the means of palming spurious offspring upon the husband, while the adultery of the husband could have no such effect with regard to the wife.32

And in 1697, the Earl of Macclesfield’s, in one of the earliest of the parliamentary divorces, had enunciated the principle as follows:

That it would be a most unreasonable hardship upon him, that the standing law which is designed to do every man right, should, by the rigour of the letter, be to him the cause of the greatest wrong: and that for his wife's fault he should be deprived of the common privilege of every freeman in the world, to have an heir of his own body to inherit what he possessed either of honour or of estate, or that his only brother should lose his claim to both, and have his birthright sacrificed to the Lady Macclesfield's irregular life.33

It is interesting, however, that there was another reason for the double standard than the needs of the possessing classes. The 1853 Royal Commission on Divorce quotes Lord Brougham, as Lord Chancellor, pointing to the undesirable consequences of giving a wife equal rights in the matter of divorce on the ground of adultery. This was the besetting fear of collusion, of making it easy for a divorce-seeking husband to conjure up a ground for a divorce, even where no adultery had been committed.

He would say that it should be a case extraordinary in its enormity to entitle the female to such relief. He begged their Lordships would look at such a proceeding as this: every man who desired to get rid of his wife, has only to go and seek a mistress, and, as the natural consequence of such conduct, to desert his wife, and therefore he instantly drives her to an application to the House of Lords; a Divorce is obtained, and his purpose is secured. He thought the best protection which could be imparted to the bonds of matrimony, was to abide by our ancient practice with respect to such cases. Parliament could afford the wife no remedy without at the same time setting the husband free from those shackles which it was his object to get rid of.34

This speech occurred in the proceedings in Mrs Moffat’s case, which was heard by the House of Lords in the Session of 1832. In that case, Lord Eldon was in favour of allowing the wife’s application for a divorce on the ground of her husband’s simple adultery. Eldon said:

The novelty of the present measure arose from its being an application on the part of the wife against the husband; but he had yet to learn that a woman had not as good a right to relief as a man, under the circumstances which give rise to a bill of this description. It appeared that these parties married without the consent of the lady’s father, in consequence of an objection on his part, which arose from the disorderly course of life which Mr Moffat led. He (Lord Eldon) understood it was to be argued, because a young woman married a man in consequence of a misplaced affection, that it is to be sufficient authority for the husband’s treating her as he thought proper. In that proposition he, for one, could not concur; and as he saw no reason why a woman was not as much entitled to sue for divorce as a man, he should conclude by moving that the bill for divorce be read a second time.35

The case, however, was lost.

Australia: Bigamy and the presumption of death: a ‘People’s Divorce’

In Australia, many women were deserted because of their husbands’ inclination to wander. The gold rushes and mineral booms enticed many men away from their homes. But in any case, those homes lacked the settled background of families who had been settled there for generations, where they had their roots.

Above all, even in reasonably ‘settled’ marriages, the parties and particularly the women, were under considerable strain: not for them ‘the noiseless tenor of their way’36 as this account of conditions in one Victorian country district illustrates:

The gold rushes had clearly put marriage and family life under great strain, as husbands deserted families for the diggings, and then moved away from Castlemaine also, chasing a new strike, or seeking a fresh livelihood, leaving wives to seek maintenance as best they could, sometimes through the courts, where censorious magistrates lectured the men on the responsibilities of the marriage state that ought to have been carefully considered before the wedding day. The makeshift dwellings, leaky in winter and oppressively hot in summer, the monotonous diet of mutton, damper and pudding with only occasional fruit and vegetables, the scarcity of water, the crude latrines, the trials of cooking in the open air or under smoking chimneys, jealousy of attentions of single men: these factors, among others, created stress. Wife beating was by no means uncommon, and almost every month some wife brought her husband to court for assault, or for threatening to murder her.37

Nor need the absence of the men have been intended to be of permanent or longer duration. It may have been simply occasioned by prevailing economic conditions in the cities, as well as on the land:

The casual labour market determined a second aspect of family life. Sydney men were either away from home frequently, or did not set up a family because they had to be constantly on the move. The city’s inefficient transport system meant that quite late in the century, jobs located even a short distance away required that workers sleep away from home, like the tent dwellers on the night of the 1891 census, who included some railway navvies building the St Leonards-Hornsby line. More often, though, the men would be ‘up country’. Put another way, many of Sydney’s women were often without a male breadwinner physically present, which would have increased the women’s need to seek paid work. Frequent absences from home in many marriages evolved into virtual or complete desertion.

In addition to Sydney men being absent, the opposite phenomenon, rural men sojourning in the city, created areas characterised by prostitution, cheap eating houses, night refuges and dosshouses — none of which was conducive to maintaining the values of bourgeois family life. Tentative research in this field indicates Sydney far outran Melbourne in generating these activities, no doubt because of higher rates of mobility demanded by an economy servicing pastoralism.38

To conclude on a note of the obvious: the forms and structure of family relationships among the early settlers were influenced by, if not dependent on, economic conditions prevailing in the Australian colonies during the early years of settlement. It was during that period that the matrix of the configuration of the Australian polity of the future took shape, as is evident when we look at those conditions:

Familial relations, as E P Thompson noted, have always been intermeshed with economic structures. This has occurred in an obvious way among the free-selection and closer- and soldier-settlement communities discussed. Because penniless men were put into an occupation which demanded capital, they were forced to exploit their wives’ and children’s labour in farm production in a society which had institutionalised separate spheres for men and women and dependency and schooling for children.39

In Australia, as we have seen, the expedient of parliamentary divorce, as a way of escaping from a marriage, had never existed. A ‘popular’ way out was bigamy based on the presumption of death. This presumption was based on a common law rule in English law ‘that a person could be presumed dead, who had not been heard of for seven years by those who would be most likely to hear of them if they were alive.’40 The rule was institutionalised by legislation:

As a response to social problems, the British parliament had passed a series of acts dealing with bigamy, the ending of a marriage and remarriage under certain conditions. The first as early as 1603 allowed for remarriage after a period of absence of seven years if one of the partners did not know the ‘other to be living within that time’. With the expansion of the Empire, abandoned wives and their children became a more pressing problem in England. Subsequent acts made it easier for those deserted or abandoned to remarry. One in 1822, enabled men and women to remarry, provided they signed an affidavit to the effect that their spouse had died. An act in 1828 gave even greater leeway. It allowed for a remarriage if one spouse were ‘continually absent … for the space of seven years … and shall not have been known … to be living within that time’.41

As such, presumption of death was a defence to a charge of bigamy, although any subsequent marriage would not thereby be rendered valid, if the first spouse should subsequently turn out to be alive.42 The defence was utilised particularly where the missing spouse had been beyond the seas for seven years, sometimes even where the defendant knew her or him to be alive.

The rule came to be widely used as a means of escaping from a marriage that was felt to be irksome or no longer viable. Where spouses had become separated because of transportation, for instance, it was generally beyond human endurance to wait for 7 or 14 years before being reunited . If a person’s spouse had disappeared, or had departed for parts unknown, e.g. beyond the seas, and had not been heard of for 7 years or longer, the presumption was then invoked. It was used, not only by transported convicts, but even by some of the wives that had been left behind, because they were unable or unwilling to make the necessary enquiries. Technically, on remarriage, a person in this position was committing bigamy, if that remarriage took place before the expiration of the seven years of absence. It is more than doubtful, however, whether the offence was often detected or pursued into court. George Rudé refers to evidence of probably eighty marriages of convict labourers in Van Diemen’s Land between 1834 and 1850, with a further seven having been given approval, while three were refused, one of these because he was married already. He goes on:

A curious fact is that these eighty, the evidence of whose marriage seems fairly conclusive, include no less than twenty-five who appear on the convict indents and conduct records as already married before their transportation. I do not feel qualified to throw much light on this mystery, as annulments of marriage were still a rare occurrence and it seems unlikely that, in the case of men so young, the death of a wife in England could be an appropriate explanation. Some presumably got away with bigamy. There was certainly one such case, though it took some time to be discovered. David Bartlett, an Eliza man from Wiltshire, described in 1831 as being married with one child, married Agnes Skewes at St George’s, Sorell, on 31 January 1842; and, seventeen years later, on 27 January 1859, was convicted of bigamy and sentenced to one year’s Hard Labour at Port Arthur.43

The legal position as to bigamy and the presumption of death is clearly stated, for example, in the criminal law of Tasmania in 1864:

Bigamy.

55. Whosoever, being married, shall marry any other person during the life of the former husband or wife, whether the second marriage shall have taken place in this colony or elsewhere, shall be guilty of felony, and being convicted thereof shall be liable to be imprisoned for seven years; Provided that nothing in this section contained shall extend to any second marriage contracted elsewhere than in this colony, or to any person marrying a second time whose husband or wife shall have been continually absent from such person for the space of seven years then last past, and shall not have been known by such person to be living within that time....44

Conditions in early colonial Australia were very different from those in England. The number of males far outweighed that of females, even after the arrival in numbers of free settlers. Communications were difficult and time consuming, with literacy being far from universal. A recent comment on this aspect in the lives of convicts points out:

The ability to write was unusual in a woman. Between one-quarter and one-third of the women who came as convicts by the First Fleet seem to have had enough schooling to allow them to write their own names. The figure for men was a little more than half.

The proportion on the First Fleet who could sign was roughly typical of labouring people in England. However, both in England and in New South Wales there were many who could read, however haltingly, without being able to write. Reading was more often useful, and more easily practised. Writing, on the other hand, was a skill not much needed by the poor, especially women. They rarely had command of paper, pen or ink, or time to learn.45

Many convicts thus lost touch with their spouses upon transportation, even if they wanted to keep in touch. It was then tempting to contract a new marriage in Australia, even if they had to persuade the authorities that they were unmarried or widowed.46

In early and mid nineteenth century, people could easily disappear, particularly if they had gone overseas. Convicts sentenced to transportation for seven or fourteen years or for life were in most cases transported without their families. Subsequent applications for families to join them were not necessarily granted. A convict had to show that the family would not become a burden on the government or, where the convict had been assigned to a settler, that the master had no objection.

The legal principle was obviously subject to a great deal of abuse, as much out of ignorance as from any wilful flouting of the law. While widely known in general terms, and as such part of the general ‘mythology of the law’, it was sufficiently vague in its application and, therefore, often misstated and misapplied. Numerous cases of bigamy occurred, often committed under cover of the doctrine, and often without criminal intent. It is very doubtful whether all but a very small proportion were ever pursued into court.

One particular misuse of the seven year doctrine was that while, strictly speaking, it applied only retrospectively at the end of the seven year period, many acted on the assumption that once contact had been broken by separation, the way was open to remarriage. The same kind of reasoning was also applied by those left behind at home. In a letter written to the Reverend Samuel Marsden in 1832, Elizabeth Fry comments on the difficulty of knowing with certainty whether female convicts, or the wives they had left behind, were married or not:

For as it is only their own word that is taken for it, it may as well be taken in New South Wales as here and those who make it clear that they are married certainly should be treated as such but it appears almost impossible certainly to know their real condition. Our Under Secretary of State also says that any woman who has not heard of her husband for seven years may marry again - therefore there is nothing to hinder any under such circumstances.47

It appears that the authorities were often prepared to accept statements on affidavit, that applicants were within the principle. On the other hand, the authorities themselves do not always seem to have uniformly applied the same rules to this question.48 An example of a frustrated attempt to apply the doctrine was the case of Anne Brigstock of 1829. John Brigstock, of the County of Huntingdon in England, had been convicted of sheep stealing and sentenced to transportation for fourteen years. Mr. John Heathcote, evidently a Huntingdon magistrate, wrote to the Colonial Office:

I presume to trouble you with this Letter in Consequence of a Man having been brought before me on a Charge of Bastardy which he has committed with the Wife of John Brigstock who was sentenced within this last two years (I think) to transportation for fourteen years for Sheep stealing in the County of Huntingdon, and who has sailed for New South Wales.

The Man is willing to marry Anne Brigstock. I shall therefore be much obliged if you will inform me whether John Brigstock is still living, as an Opinion prevails in the Parish to which the Woman belongs that she may marry again under such Circumstances. I shall esteem it a particular favor if you would send me an answer to that Question also.

A marginal note in the departmental file, with instructions for a reply, seeks more information from the Colonial Office as to John Brigstock and continues:

With regard to the latter part of your letter in which you request as a particular favor, that Mr. Peel will give you his opinion upon the question whether the wife of that man may now legally marry another man, I am to inform you that Mr. P does not see how she can do such an act without committing a felony.49

One’s guess is that if the matter had not come to the notice of the authorities, Anne Brigstock probably would have gone ahead and married again anyway, as many others had done.

As for the authorities making available any facilities for divorce on the English model, there are clear indications that this was against official policy. A case in point is that of Mr. William Nairn Clark of Western Australia. In a letter dated 1 December 1838 and addressed to the Secretary of State for the Colonies, the unfortunate Mr. Clark wrote complaining of his inability to divorce his wife, who had been seduced by a former captain of the Royal African Corps. On taking proceedings against the seducer in the Civil Court of the Colony, he had been awarded damages in the sum of £50. There the matter rested, as there was at that time no facility for obtaining a divorce in Western Australia. Mr. Clark goes on to:

Complain of the hardship of being forced to go to England to prosecute a divorce against my wife, whose adultery has been legally proved in a Colonial Court of Justice, and of incurring a great expense in the Spiritual Court at Home and in both Houses of Parliament previously to the passing of a Bill for the purpose alluded to (i.e. parliamentary divorce).

If the Royal Instructions to the Governor of Western Australia were amended so far as to give him the power of proposing Divorce Bills, on application, through means of the Legislative Council, such a measure would be attended with much benefit to Her Majesty’s subjects in this part of the Globe, and surely those Legislators who are on the spot must be the best Judges of the reasons for passing Divorce Bills…50.

Obviously, what Mr Clark had in mind, was the conferral upon the West Australian Legislative Council of the right to grant parliamentary divorces.

It appears that the powers that be were not anxious to accommodate Mr. Clark. He was advised in reply to his letter to the Governor of Western Australia, Sir James Stirling, that the colonial authorities did not have the power to do as he asked. There seems to have been no further correspondence on the matter for six years until 1844, when Mr. Clark sent a copy of his original letter to the then Governor, Mr. John Hutt. The latter forwarded it to the Secretary of State for the Colonies Lord Stanley, with a note that no reply had been received to the letter of 1838.

This second letter generated some internal memoranda with information for the Secretary of State as to the fate of the original letter. The following is interesting for the light it sheds on the administrative handling of such correspondence. To the question ‘what happened on the letter sent to Lord Glenelg?’51 the following memorandum in reply appears on the file:

It was referred to the Law Officers of the Crown on the 21st May 1838. They were in favour of authorising the Colonial Courts to grant Divorces a mensa et thoro but not a vinculo matrimonii52, as powers not granted to the Courts in this country. Lord J Russell observed: ‘I think the divorce a mensa et thoro would scarcely be a boon to the Colonists. This opinion may sleep’.

It was then suggested whether Mr. Clark should not receive some answer to his application, and Mr. Stephen decided that such was not Lord Russell’s intention, as ‘Mr. Clark could obtain no satisfaction from any answer which will be sent to him’. The subject accordingly dropped53.

There is some further internal to-ing and fro-ing, with a note to the effect that ‘I would certainly not make Western Australia an exception…’54 The correspondence concludes with a reply dated 1 March 1845, to be sent to Governor Hutt which, after a recital of the course of events, goes on to say:

You will, therefore, acquaint Mr. Clark that on consulting the Law Officers of the Crown difficulties were found to exist which prevented the introduction of the Law of Divorce into the Colonies.55

Thus the authorities did not favour any extension of the existing facilities for divorce to the colonies, either parliamentary or even a mensa et thoro. Mr Clark had to wait 7 years to get his answer. Obviously the ‘too hard basket’ is no recent invention.

Bigamy in colonial Australia was probably much more widespread than is often realised. This emerges, for example, in Samuel Marsden’s evidence to Commissioner Bigge.56 Marsden, when asked whether he had found women married in New South Wales who had husbands in England and whose husbands joined them after their second ‘marriage’, tells of two such cases.57 There is, however, never any mention of any likely prosecutions for bigamy.

If bigamy was widely accepted in the popular culture, having regard to the forcible separation of convicts and their families, the Home Government had not done much to enhance the status of monogamous marriage in convict Australia. This was despite the lip-service that was always paid to the virtue of marriage and of marital faithfulness. This attitude on the part of officialdom to the implications and obligations of marriage, is indeed reminiscent of the treatment of paupers in England, where families in poorhouses were rigidly segregated, - not least, one suspects, in order to prevent the procreation of further paupers.58 It is evidence of a curiously schizophrenic attitude on the part of the authorities.

Cohabitation or Prostitution: another alternative

Professor Peter McDonald, formerly of the Australian Institute of Family Studies59, has commented on the marital arrangements of convicts:

It might also be speculated that some of the convicts did not marry legally because they still had wives in Britain. Robson has estimated that about 25% of the male convicts had wives before they left Britain. It is apparent, at least in this early period, that very few of the convicts’ wives were able to follow their husbands to the colony. In fact, Governor King had complained that the few who had been allowed to accompany their husbands were of the ‘worst description’. Also, in 1820, the Reverend John Youl stated that there was a general belief amongst the convicts that ‘those who had been transported to this country are released from their matrimonial engagements’.

The fact that only 27% of the adult women were reported as married should not, therefore, be seen as a revolt against the institution of marriage, but rather as a result of a number of factors which led the majority of the population to ignore the official or legal form of marriage60.

An interesting aspect of the attitude towards marriage and cohabitation among Australian convicts was the widespread belief among middle-class observers that there was a high degree of immorality and prostitution among the women. This belief was current for long and persisted until comparatively recent times. One comment written in 1957 quotes the evidence of James Mudie, a magistrate who testified before the Select Committee on Transportation in 1837:

I should say, of almost the whole of the convict women that arrive in New South Wales, that there is hardly an exception amongst them; there are some sent out for bigamy that have been in better society; but others that have attended the theatres, and the lowest girls possible that have been streetwalkers, all sorts; but they all smoke, drink, and in fact to speak in plain language, I consider them all prostitutes.61

These views have more recently been challenged62. Michael Sturma has shown that the term ‘prostitute’ was often used, in contemporary England, as referring to a woman living in what we today would describe as a ‘de facto relationship’:

The ‘prostitute’ was not necessarily a professional harlot, nor even promiscuous. Patrick Colquhoun’s often quoted estimate that 50,000 prostitutes resided in London alone included ‘the multitude of low females, who cohabit with labourers and others ‘without matrimony’. By mid-century Bracebridge Hemyng, who investigated prostitution as part of Henry Mayhew’s inquiries, estimated that prostitutes in the Metropolis numbered about 80,000. But it is worth noting the definition of prostitution given by Mayhew and Hemyng:

Prostitution ... may be done either from mercenary or voluptuous motives; be the cause however, what it may, the act remains the same ... Prostitution, then, does not consist solely in promiscuous intercourse, for she who confines her favours to one may still be a prostitute.

In short, the woman labelled a ‘prostitute’ might be guilty of no more than cohabitation.63

Here, then, was a double standard. Relevantly for our purposes, Sturma also says that: ‘In part, cohabitation in Australia may be regarded as an extension of English culture’64. As an alternative to bigamy or to prostitution, couples just cohabited in what we would call de facto marriages. They attracted a good deal of criticism and the women, in particular, were labelled ‘prostitutes’ even if they were not promiscuous. At any rate it is clear that the number of those who were living in an informal cohabitation or de facto union must have been very high. It follows that the rate of ex-nuptial offspring of these unions must have been similarly high. This was, no doubt, a matter of concern to the colonial administrations, not least because some form of public support might be required in the absence of a clearly designated, legally liable father figure.

Divorce comes to Colonial Australia

As we have seen, it had become obvious to the authorities in England by the middle of the 19th century, that divorce should be institutionalised, because of the increasing number of broken or deserted families. New alliances were entered into, informally or on whatever basis this could be done. Illegitimacy on a large scale was just one of the consequences. The Report of the 1853 Royal Commission on Divorce shows the qualms of conscience of a body that represented the voice of the establishment after all. The Commission was torn between a growing social necessity on the one hand, and the traditional wisdom about the preservation of marriage as the cornerstone of society on the other. In the result, the extreme limit to which the Commission were prepared to go in allowing divorce a vinculo was for adultery only, for which there was, after all, biblical authority, but then only on the part of a wife.65

With the introduction of divorce into Australia, the precise details were left to each colony to deal with, so long as the legislation followed the imperial model.

Table 1: Years of First Introduction of Divorce Legislation in England and the Australian Colonies, with comparative population figures

Year Jurisdiction Population
(approx.)
1857 England 19,000,000
1858 South Australia 120,000
1860 Tasmania 88,000
1861 Victoria 538,000
1863 Western Australia 18,000
1864 Queensland 61,500
1873 New South Wales 510,000

66

After the passing of the English Divorce and Matrimonial Causes Act of 1857, the Colonial Secretary, Lord Stanley, sent out a circular to the Governor of each colony, enclosing a copy of the Act. He invited them to pass similar legislation, see Table 1: 67

Lord Stanley’s despatch said:

In transmitting to you a copy of the ‘Act to amend the Law relating to Divorce and Matrimonial Causes in England’, I wish to call your attention to the great importance of the subject.

Her Majesty's Government regard this subject as within the general class of internal affairs which the duty and right of regulating belong to the Colonial Legislatures under Free Institutions.

But they are at the same time fully sensible of the great importance of uniformity of legislation on this head, so far as it can be attained without injury to these principles of Colonial Government, and the danger, as well to public morality as to family interests, which might arise from the Law of the Colonies on the subject of Marriage and Divorce differing materially from that of the Mother Country and of each other.

It is therefore the wish of Her Majesty's Government that you should consult your Council as to the expediency of at once introducing a measure which shall incorporate, as nearly as the circumstances of the Colony will admit, the provisions of the Act recently passed in England.

Some of the minor provisions of the Act may, probably, prove incompatible with the requirement of the Colony, nor is it my wish to prescribe uniformity in such unessential particulars. But the serious questions which might arise from difference of legislation on that portion of the subject which relates to dissolution of Marriage, or Divorce a vinculo, - questions possibly affecting the validity of Marriages contracted in one part of the Empire after Divorce in another, and consequent legitimacy of offspring, - render it advisable that, if the Legislature should pass any Act varying to an important degree from the present Law of England in this particular, you should reserve it for the consideration of Her Majesty.

The clause in most Governor's Instructions relating to Divorce Acts has been usually held to apply only to Special Bills for the Divorce of named persons, and you need not consider yourself in any way fettered by its provisions.68

The last-quoted paragraph in the Instructions perhaps needs some further clarification. The Instructions issued to the Governor of NSW, Sir William Denison in 1855 illustrate the point:

Sixth - When any bill is presented to you for our assent, of either of the classes hereinafter specified, you shall (unless you shall think proper to withhold our assent from the same) reserve the same for the signification of our pleasure thereon; subject, nevertheless to your discretion, in case you should be of opinion that an urgent necessity exists, requiring that such bill be brought into immediate operation; in which case you are authorised to assent to such bill in our name, transmitting to us by the earliest opportunity the bill so assented to, together with your reasons for assenting thereto; that is to say:-
  1. Any bill for the divorce of persons joined together in holy matrimony.69

A discretion was thus vested in the Governor of each colony to bring a divorce bill into immediate operation in certain circumstances. This discretion was never exercised, but its existence provides a gloss upon the Instructions, limiting their apparent scope. It is obvious, however, that the discretion was intended to authorise an actual bill of divorce in a case of ‘urgent necessity’ without referring it to the Queen. This was clearly intended to apply to individual divorce Acts on the lines of English parliamentary divorces, - rather than any general law of divorce, which did not, after all, exist. When it is borne in mind that at the time of this formulation there was no general law of divorce in England, but that individual divorces by Act of Parliament were possible, this limitation must follow by necessary implication.

But what of the fact that the 1857 Act was described as an ‘amending’ Act? The Act opened with the following description:

An Act to amend the Law relating to Divorce and Matrimonial Causes in England.
WHEREAS it is expedient to amend the Law relating to Divorce,…70

This wording could give rise to an assumption, that the Act was doing no more than to introduce changes to an already existing law of divorce. In England, that fiction had a semblance of fact as its basis. After all, there was the parliamentary model.

In Australian conditions, however, this was a pure fiction. Nevertheless, several of the colonial Acts, like the wording in the Despatch, maintain the assumption that the situation was the same in the Colonies. South Australia and Victoria copy almost verbatim the preamble to the parent Act71. The Tasmanian Act simply recites the fact that an English Act has been passed to ‘amend the Law relating to Divorce and Matrimonial Causes’72 Similarly, the Western Australian Ordinance of 1863 recites ‘the recent Statutes amending the law relating to divorce and matrimonial causes in England’.73 Only in Queensland and New South Wales is the position stated with greater precision, although it must be said that in the latter case, it came some years later than in the other colonies.74

Even in England the impression that the 1857 Act involved nothing more than a procedural reform was mere verbiage. More accurately, it did include a reference to divorce a mensa et thoro. In the absence of divorce a vinculo, it was customary to refer to the former as ‘divorce’. But no less a person than the Lord Chancellor, on introducing the Second Reading of the Divorce Bill in May 1856 stated that:

As their Lordships were aware, a divorce, properly so called, such as would reinvest the parties with the privileges of single persons and enable them to marry again, was entirely unknown to the law of England.75

Table 2:

Table 2 gives an overview of the progress of divorce reform in Australia, showing first introduction of the various divorce grounds in England and the Australian Colonies/States, with particular reference to the abolition of the double standard in adultery, and the introduction of desertion, drunkenness and imprisonment as grounds for divorce.

JURISDICTION

ENG

SA

TAS

VIC

WA

QLD

NSW

Divorce introduced

1857: s 27

1858:s 12

1860: s 14

1861(i):s 13

1863: s 23

1864: s 21

1873: s 22

Adultery: (a)

Dble standard

1857

1858

1860

1861

1863

1864

1873

Rape/sodomy, or bestiality (husb)

1857

1858

1860

1861

1863 (b)

1864

1873

Adultery equally

1923

1918

1919 (c)

----

1911

1923 (d)

1881

Desertion

 

1937:

3 yrs

1928: 5 yrs. (dom 3 yrs)

1919.W:2yrs.

H: 4 yrs

(dom 2 yrs)

1889, 3yrs

(dom 2yrs)

1911

5 yrs:

1923,

5 yrs:

1892, 3

(dom 3 yrs)

Resp 3 yr habit. Drunkd + either:

If H: habit left W w/o m.o.suppt, or cruel beat W,

If W:habit. Negl. Domest.duties

 

1928

dom’d

3 years

1919

dom’d

2 years

1889

dom’d

2 years

1911 (e)

 

1892, 3 yrs

dom’d 3 yrs

Resp Impris’d for capit crime or 7 yr stce or freq convvns 5 yrs, plus aggreg impmt 3yrs and left W habit. W/o m. o.suppt

 

1928

dom’d

3 years

1919 (f)

dom’d

2 years

1889

dom’d

2 years

1911 (e)

 

 

1892,

dom’d 3 yrs

W/H: Att murd/ repeat assault/ cruel beaten

 

1928 1 year

(dom 3 yrs)

1919

(dom 2 yrs)

1889 (g)

1 yr

(dom 2 yrs)

1911, (g) 1 yr

 

1892,

(dom 3 yrs).

Insanity, or confined, and unlikely recover

1937

5 yrs

1928

5in6yrs

dom’d3 yrs)

1919

7 in 10 yrs: (dom 2 yrs),

1919

5 in 6 yrs

(dom 2 yrs)

1911

5 in 6 yrs

1923

5 in 6 yrs

 

W/H: Restn conj rights + adultery

1884,

         

1893

Cruelty

1937

           

Husband: (h)

Aggrav adultery

     

1889

dom’d 2 yrs

     
Notes:
(a): Husband: Wife guilty of adultery; Wife: Husband guilty of incestuous adultery, bigamy with adultery, … adultery coupled with cruelty as in divorce a mensa et thoro, adultery plus 2 year desertion.
(b): Sodomy or bestiality.
(c): Wife: if domiciled 2 years: equal right re Husband’s adultery after date of legislation..
(d): From date of legislation.
(e): WA: 4 years habitual; drunkard.
(f): Tas: ‘leaving Wife without means of support’ is omitted.
(g): Or: assault with intent to inflict grievous bodily. harm: for Victoria, Western Australia.
(h): Adultery in conjugal residence, or aggravated, or repeated.
(i) 1864 consolidation.

Once divorce had been introduced from England, it soon became obvious that further changes must follow because of the differences in social conditions prevailing in the Australian colonies. The tension between the two social systems was due to a number of factors. One was the much more subdued impact of class distinctions on the English model. Linked with this, and very powerfully, were other differences in Australian circumstances. One important factor was the much greater migratory propensity of the population, which has already been alluded to. Australia was a new country, an empty continent with a sparse population that lacked the settled, often centuries old background of a people with a tradition of place and of being established and surrounded by familiar social and economic conditions. There was the urge to explore, to push into the beckoning beyond, - always with the hope of better conditions or greater wealth to be found in the unknown. These hopes were fuelled by discoveries of gold and other minerals, and the possible opportunities of getting rich quickly.

The excitement generated by these conditions can be compared with the modern quest for instant wealth in the shape of lotteries and gambling. As married women and their children were abandoned by their husbands and fathers in search of fortune, the burdens upon the communities supporting them increased markedly and contributed to the problems occasioned by their desertion. The fact that many convicts, once in the colonies, contracted new alliances including bigamous marriages, does not seem greatly to have disturbed the authorities. The home authorities did not seem to care what the convicts did about their marital arrangements, once they were safely out of the country. Similarly, the colonial authorities seem to have been indifferent to any endeavours by colonial governments to shape their divorce laws to their own needs, once they were finally invested with them.

Empire Comity, and the Double Standard in Australia

The double standard in adultery remained entrenched in England until its removal in 1923.76 In most Australian jurisdictions it was abolished earlier, see Table 2. However, in the State of Victoria it was to continue until 195977, - when the Commonwealth Matrimonial Causes Act was enacted and superseded the separate State laws of divorce78. But even after the double standard had been removed from the law, it took a long time to disappear from public attitudes. A social stigma continued to adhere to adultery and to divorce and to those caught up in it, until well into the nineteen hundreds, affecting women more severely than men. Only in the second half century, or to be more specific, in the last quarter of the twentieth century did it diminish to almost vanishing point. At the same time, the social significance of legal marriage also declined, while divorces greatly increased in number, and de facto marriage took over much of the importance of legal marriage.

When we consider the way in which the Australian divorce laws unfolded, we realise that we are looking at an aspect of the changing relationships between men and women within society, along with conditions in Australia. The Adelaide Advertiser, in an editorial comment in 1889 pointed out that:

Life in Australia is different from life in England. The volatile nature of some of the population, illustrated by the frequency of removals from one colony to another, has led to a tendency to the crime of setting marriage obligations at nought, which the law is at present powerless to provide against or remedy. But even if the reform were not so sure of being universally adopted in Australia the argument for absolute uniformity falls to the ground when it is remembered that the marriage laws of England, Ireland and Scotland are widely different from one another, being positively established upon different foundations, and yet no really insurmountable difficulties present themselves.79

More particularly, we are concerned here with an expatriate society, differing at the outset from the original mould, but with a social value system still sufficiently derivative for it to be identifiable with its parent model. And so the matrix is still of a male-female relationship model that had evolved in England over the centuries. Aspects of this, in the nature of things, were bound to become less relevant with the effluxion of time, but in a new environment and with changing social conditions that process was being greatly accelerated. Nowhere was this more evident than in the emerging attitudes to the law of divorce. Attitudes to marital guilt, and the consequences to be drawn from that guilt, dictated viewpoints that gave rise to themes running in counterpoint to the main terms of the new law.

The growing divergence between conditions in England and those in the Australian colonies was probably more noticeable among the politicians than among the lawyers, moulded as they were in their conditioning by both English precedent and English law. It is instructive, therefore, to look at the parliamentary debates in order to ascertain how they reflect what the people thought about divorce. Apart from opposition to divorce by the established churches, particularly the Anglican and Roman Catholic denominations, many of the speeches point to the different social conditions in the two countries. One notable factor was the comparative degree of rootlessness, geographically speaking, in the Australian population, as well as the migratory propensities around the continent. Added to these was the relatively high rate of desertions in Australian families, contributing to the rate of marriage breakdown. Social conditions were soon to generate a variety of legal responses to marriage breakdown, differing from those in the mother country.

An examination of the opinions held in the various colonies shows an awareness of the need for a divorce law and the adverse consequences that ensued where there was none, or one that was subject to severe restrictions. This awareness gradually asserted itself against the opposition of religious views and other conservative forces in the community. These views differed, ranging from putting women on a pedestal with an idealised view of womanhood -, to seeing them as occupying a different place from mankind -, to male chauvinist views which demanded that they had to be kept in their place. But however woman-friendly the views might be: women could not speak for themselves in the decision-making process. Until comparatively late in the century, when we speak about community opinions, we are considering almost exclusively the views of the male component of the community. There are some indications of women’s points of view, for example as they show up in readers’ letters to the newspapers. But as opinion forming forces in the community, such views found at first little encouragement and were thus slow to establish themselves as major factors in domestic politics80. We must also remember the absence of women’s suffrage until practically the turn of the century.81

Any move to provide different legal solutions in the colonies, however, was at first strenuously resisted at home. The Colonial Secretary’s instructions were clear: any attempt to diverge significantly from the English model had to be referred back to the home government and was subject to disallowance.82

The rationale for this policy was, mainly, Empire comity. Ensuring uniformity of marital status and legitimacy of descent within the overseas dependencies was a major policy consideration. Britons in the Australian colonies were ordinary British subjects who were free to come and go within the Empire and from Colony to Colony, and many of them did in fact do so. To begin with, disallowance was therefore the invariable rule in major cases of divergence from the imperial model. An example is the fate that befell John Pascoe Fawkner’s attempt in Victoria to promote a radically different law in 1860. His Divorce Bill attempted to abolish the double standard in the ground of adultery, as well as including two additional grounds of divorce: four years’ desertion and habitual drunkenness.83

The Bill, passed by the Victorian Legislature, was promptly disallowed. In a dispatch in 1861 from the Secretary for the Colonies, the Duke of Newcastle said:

Whatever the effect of a colonial law may be within a colonial jurisdiction, I believe it to be at least most doubtful whether a marriage or divorce wanting in these conditions can be made valid in England by any colonial law; and if this be not the case, if the validity of such marriages and divorces is confined at most to the colony in which they take place, the greatest embarrassments might result from the prevalence of different laws in different parts of the empire. Marriages, legally contracted in one colony, would be inoperative for all legal purposes in another. Marriages legally dissolved in one colony, would be inoperative for all legal purposes, in another. One man would find himself subject to an unexpected prosecution for bigamy; another, who had married a wife in conformity with Australian law might, on passing to England, find himself at liberty during her lifetime to marry another with impunity. Children, legitimate in one part of the empire, might in another find themselves incapable of inheriting their parents’ property anywhere else. In fact, it is impossible to foretell the distress, insecurity and litigation which might arise from such a state of things. These evils would not be confined to the colony whose legislation had given birth to them - they are essentially imperial. The probability of such evils renders it the duty of the Home Government, as far as its power extends, to maintain throughout the empire that essential uniformity in the law of marriage which alone can effectually prevent them.

On this principle I am precluded from advising Her Majesty to assent to an Act which effects such important innovations in the essential conditions of dissolving one marriage, and thus renders it practicable to contract a fresh marriage in Victoria under circumstances which would render that marriage of at least questionable validity in other parts of the empire.84

But the perceived need for breaking away from the imperial model did not go away. On the contrary, it was to be a recurrent theme and motivating force in the movement for divorce extension, that was to characterise the ensuing years of the nineteenth century.

Even a minor departure from the model, while not perhaps considered sufficiently grave to incur outright disallowance, could be enough to invite severe displeasure from the home authorities. In 1859 South Australia varied the model by enacting a discretionary, as distinct from a mandatory bar to divorce in cases of condonation. This enabled a court to grant or refuse a decree nisi, as it thought fit, even where there had been condonation. The South Australian governor, in forwarding this Bill to the home authorities, tried to justify the departure, somewhat naively, by pointing out:

By the Act it is made simply a ground on which the Court may in its discretion refuse compliance with a petition for divorce. In this respect the enclosed Act is perhaps an improvement on the English Act85

That, however, was not how the powers that be viewed the matter. In a lengthy despatch to the Governor, Lord Carnarvon, then Parliamentary Under Secretary at the Colonial Office, commented on the Act and the departure from the original. Carnarvon made it clear at the outset, that while the Act would be left in operation, having been given the Royal Assent by the Governor, he could not let the matter pass without a gentle rap over the knuckles:

I cannot however refrain from addressing you a few words on the practical operation of this Act.

It appears to me that there can be few subjects of greater importance to the welfare of the entire body which is united under the Government of the British Crown, than the maintenance of uniformity of legislation, as far as practicable, in matters of social and domestic interest among which the law of marriage stands prominent.

It would be indeed a matter of great satisfaction, if the British subject, in whatever part of the Empire he might find himself (or at least in any part subject to English law) could feel that his position in these all important particulars, his rights and duties in married life, the legitimacy of his issue, the descent of his property, were legally the same. This would at once tend to the general advantage by consolidating our domestic polity, and at the same time to that of the individual, by giving additional certainty and simplicity to his legal condition as a citizen of the Empire.

No local circumstances are alleged which cause variation in the South Australian law from the English and it is evident that the Colonial Legislature embrace and have acted on, the same view of the moral and social questions connected with the subject which was adopted by the British Parliament.

I am therefore the more disposed to regret, that the South Australian Legislature should have thought it advisable to introduce such comparatively minute variations from the English standard as, for instance, the making "condonation" a bar in the discretion of the courts instead of absolutely and the making one year instead of two the period of legal desertion of a wife.

I do not at all enquire whether the provisions of the S. Australian Act may or may not, be in themselves more wisely framed than those of the English. But comparatively trifling as they are it is obvious that they are sufficient to render marriages valid, and births legitimate in S. Australia, which would not be so under similar circumstances in England. And when once it has been decided to adopt the recent Act of Parliament on Marriage and Divorce as the model upon which the legislation of the Colony on these subjects should be framed, I cannot help thinking that the advantage of uniformity on such points as these would far overbalance that which could be attained in the better workmanship (if the fact be so) of the Colonial provision.

These however are only suggestions which I make, in case the subject should have to be reconsidered. It is unnecessary to repeat that such objections as I have stated would form no ground in the opinion of Her Majesty’s Government for interfering with the domestic legislature of S. Australia.86

Thus disallowance was not always visited upon a straying colonial legislature, but the above despatch shows how seriously such a divergence was viewed at home, certainly as being in breach of Empire comity.

Having regard to the social differences between Britain and the colonies, it is not surprising that the demand for changes in the law of divorce in the Australian colonies began to move ahead and to do so at a much faster rate than was the case in England. An overview of these developments appears in Table 2. New South Wales, which had been the slowest of the colonies to adopt a law of divorce in the first place, was now well to the fore in extending that law. To begin with, Victoria led the way in 1889, while New South Wales followed in 1892.

Hilary Golder makes some perceptive comments on the progress of divorce reform in the Australian colonies, particularly in New South Wales:

New South Wales offers an interesting case study, because the colonial parliament moved quite rapidly away from a cautious, towards an innovative stance on the divorce issue. …By 1865 divorce facilities had been established in South Australia, Tasmania, Victoria, Western Australia and Queensland. But New South Wales was slow to respond to the imperial initiative and finally passed a replica of the English Act in 1873. The Act had scarcely been proclaimed before a movement for divorce reform was being organised. Within 20 years New South Wales had the most comprehensive divorce law in the British Empire.87

Two matters in particular gave rise to the ongoing demands for reform. There was, firstly, the double standard in the law relating to adultery. In colonial Australia, the need for it, if it existed at all, was of much less significance than in England. On the other hand, deserted wives and children constituted a serious financial burden on communities that were small and unresourced to deal with such social problems on a large scale. There was a major need for the availability of a law of divorce that would allow a deserted wife an independent existence without a husband, where the latter had absconded. In a colony where there was a scarcity of women, it also made her free to contract another marriage with a provider for her and her children, in preference to the greater uncertainty of de facto cohabitation.

Amendments and Extensions: The More Populous Colonies

Once divorce had become available in Australia, the progress of reform did not stand still, although it was mainly the two larger colonies in terms of population, New South Wales and Victoria, where the impetus was making itself felt. Foremost in the vanguard of reform had stood David Buchanan, its early advocate in New South Wales. Martha Rutledge points out that:

For the next twenty years, the divorce issue was constantly before Parliament and the country. Undaunted by his initial failure, Buchanan continued to fight to win the right for a woman to divorce her husband for simple adultery. He now had to fight not only against ecclesiasticism and social prejudice, but also against the jurists and constitutional lawyers on the one hand, and the Imperial Government on the other. Until 1877, the bills he had annually introduced to this end, were either not returned by the Legislative Council or stopped by prorogation. 88

From then on, divorce extension really took off. After the 1881 Act, there were no fewer than five Bills, three of them sponsored by Buchanan, but none of them was successful. In fact the fate of attempts at divorce reform during the 1880s was more often than not one of lapsing with prorogation or dissolution, or else being counted out or withdrawn. It was not until 1892 that the Divorce Amendment and Extension Act of that year finally achieved a breakthrough by its radical departure from the original English model, leaving the mother country far behind.

The New South Wales Divorce Amendment and Extension Act introduced four new divorce grounds. The previous year, Victoria had also enacted a new Divorce Act which similarly introduced five new grounds of divorce. Common to both these Acts were the new grounds of desertion, habitual drunkenness and imprisonment. New South Wales and Victoria were the two most populous colonies, with Sydney and Melbourne the two largest cities in Australia. It is therefore not surprising that moves for extensions in the law should come from these two colonies in the first place, see Table 2.

In these reforms, Sir Alfred Stephen was to play a leading part. Stephen was a prominent member of that well-known Anglo-Australian family of lawyers, reformers and litterateurs. He had retired as Chief Justice of the New South Wales Supreme Court in 1873 and was then appointed to the New South Wales Legislative Council in 1875. He became interested in divorce reform and by 1881 abandoned his opposition to the Buchanan Bill, which had been passed by both Houses of the New South Wales Parliament. It had achieved the seemingly impossible of abolishing the double standard in the ground of adultery. The Imperial Government had rejected it three times but finally gave in, insisting however, that domicile of both parties within the jurisdiction was to be a prerequisite to its enactment. The Queen finally gave her assent in 1881.89

From then on, divorce extension really took off in New South Wales, led by Stephen. After the 1881 Act, there were no fewer than five Bills, three of them sponsored by Buchanan, but none of them successful. In fact the fate of any attempts at divorce reform during the 1880s was more often than not one of lapsing with prorogation or dissolution, or else being counted out or withdrawn. It was not until 1892 that the Divorce Amendment and Extension Act of that year finally achieved a breakthrough by its radical departure from the original English model, leaving the mother country far behind. It was the culmination of, inter alia, Stephen’s attempts to reform the law of divorce.

The Divorce Amendment and Extension Act of 1892 contained the following grounds:

  1. Desertion without cause for 2 years or more,
  2. Habitual drunkard for 3 years or more, and either left petitioner without means of support, or, habitually cruel towards her or, being petitioner’s wife, had for a like period, been an habitual drunkard and habitually neglected her domestic duties or rendered herself unfit to discharge them.90
  3. Imprisonment for not less than 3 years and still in prison on commuted sentence for capital crime, or, being a husband, having frequent convictions for crime for 5 years, and sentenced in aggregate to imprisonment for 3 years or upwards and left wife habitually without means of support.
  4. Within 1 year convicted of attempted murder of petitioner or assaulting him/her with intent to inflict grievous bodily harm, or having repeatedly assaulted and cruelly beaten petitioner.

More or less concurrently, similar moves were afoot in the sister colony of Victoria. They were led in the main by William Shiels and resulted in the Divorce Act 1889, which was assented to on 13 May 189091. This put forward the following grounds:

  1. Wilful desertion for 3 years,
  2. Habitual drunkenness for 3 years and either left wife without means of support, or habitual cruelty, or being petitioner’s wife, having been a habitual drunkard for like period and habitually neglected her domestic duties or rendered herself unfit to discharge them,
  3. Respondent imprisoned for 3 years and still in prison under commuted sentence for capital charge, or under sentence for 7 years, or being a husband, had undergone frequent convictions and sentences to aggregate 3 years and left wife habitually without means of support,
  4. Convicted of attempting to murder petitioner or assaulting her with intent to commit grievous bodily harm or that respondent repeatedly during that period assaulted and inflicted cruel beatings on petitioner,
  5. Respondent husband guilty of adultery in conjugal residence or with aggravation, or of repeated adultery.

In both cases, there was an awareness of the movements in the other colonies and references to each other’s debates.

In 1889, Shiels urged Stephen to go to London to promote the cause of divorce reform but Stephen, then aged 87, felt too old for the trip. Shiels then decided to go himself, with encouragement from supporters in Victoria, New South Wales and South Australia.92 In the course of the Victorian debates, one of the constantly recurring arguments in support was the desire to support New South Wales in its endeavours to pass a divorce extension bill. As Shiels and other supporters of reform kept pointing out, what was needed to induce the home government to allow this to pass was the demonstrated support from the Australian colonies that they were all behind the move for extension. Only if that were the case could the Queen’s assent be taken for granted.

While the arguments that were raised in the smaller colonies were similar, it is interesting to note that in none of them did divorce extension succeed as early as it had done in New South Wales and Victoria. It was the conservatism of small communities, as against the more worldly perceived needs of the larger, more sophisticated cities, like Sydney and Melbourne and their migratory populations93.

The Move for Reform spreads: The smaller Colonies

Two of the smaller colonies in terms of population, South Australia and Western Australia, attempted to introduce similar reforms to those in New South Wales and Victoria before the end of the century. While these attempts were unsuccessful, the parliamentary debates show an awareness of the connection of social with marital problems. The discussions show the tensions, especially between Christian beliefs and religious opposition to divorce on the one hand, and the sufferings of deserted wives and children on the other. One of the themes that come over most strongly is the widespread opposition to the restrictive position of the established churches, particularly the Roman Catholic and Anglican denominations.

When an attempt was made by Sir John Downer to extend the grounds of divorce in South Australia in 1888, the Adelaide Advertiser published a highly supportive editorial:

When the Matrimonial Causes Act of 1857 was introduced in England to sanction divorce for adultery without necessitating resort to the tedious and expensive processes that had hitherto restricted to the rich the power of obtaining relief from intolerable burdens, the objection was urged, as it now is to the Bill before the House, that the measure was opposed to the doctrines of the Christian faith. We are all familiar with the way in which the same line of opposition was taken up against the Bill permitting marriage with the sister of a deceased wife, now the law in almost every portion of the British Empire. Unfortunately in England the theological objection is still powerful enough in a Parliament including representatives of the Established Church to thwart the passage of a just measure of reform; but the notion that theologians, who do not agree with one another, are authorised to settle questions affecting marriage and divorce according to their own inclinations and convictions, without regard to the interests of the public, is one that has had its day. As the marriage institution is the bulwark of social morality, the State will jealously preserve everything that is essential to its maintenance. But when the objects of marriage are defeated it will not, in deference to the objections of religionists, inflict hardship and injustice by permitting no escape from unions that are marriages only in the name, and from which social immorality, as well as individual suffering, only too often flow.94

The editorial continues, by commenting on the fact that the Bill would not force anyone to act in opposition to their own beliefs. In other words, it was permissive rather than coercive in any way. It would merely enable victims of unhappy marriages to escape from their sufferings:

If the victim of an unhappy marriage — a deserted or cruelly used wife, or a husband whose house is broken up by drink, - prefers to suffer on, because he or she believes that nothing has been done to render the marriage void, it is open to that victim to choose the bitter alternative of a continuance of the miserable bond. But because their views of the sanctity of the marriage tie will disincline some to apply for that relief which the Bill proposes to afford, others who do not share in their objections should not be made to suffer95.

The discussions about divorce reform, particularly the parliamentary debates, are overlaid with biblical as well as classical references; contemporary social issues coming a poor third for the most part. The newspaper editorials, on the other hand, show a far greater awareness of the significance of the proposed reforms in the lives of ordinary men and women of the time. The Adelaide Advertiser points out that the State cannot take its instructions from either the Church of Rome, or the Church of England, or from any other sect, but must consider the interests of the community as a whole. It continues:

Who will contend that the interests of morality are promoted by the continuance of a nominal union that no longer fulfills the objects of marriage, which exists when the home has vanished, and which denies to the separated husband and wife the opportunity of contracting fresh relations to save one or both from sin?

… Divorce in these cases would not weaken respect for the marriage tie96.

There was, in the Australian context, another powerful motivating force driving divorce law reform. As the Australian colonies were moving towards federation, a strong and growing sense of nationhood became evident. This was coupled with a fervent desire for controlling their own destinies and managing their own affairs. The Adelaide Advertiser made these comments on the subject:

On the other two points the claim of Australians to the privilege of being allowed to manage their own affairs is correspondingly strong. A full consensus among the colonies on the extension of divorce question is already in full process of being realised. Victoria, as well as New South Wales has passed the Bill through all its stages. In the Parliament of South Australia the slow progress of business generally this session has checked the course of Sir John Downer’s version of the measure. But it has received strong support, and the public mind, impressed with the necessity for repressing the far too prevalent crime of wife desertion, and releasing the bonds of wedlock when, by reason of the systematic cruelty, criminality, or licentiousness of either party to the marriage contract, they have become intolerable, has undoubtedly reached the conclusion that an advance in legislation in the direction arrived at is in the highest degree desirable. There is in all the colonies, in fact, a general convergence of opinion on the whole matter. 97

In spite of the widespread support for divorce extension in South Australia, this move did not at first succeed and was abandoned, for the time being, in 1889.

The other colony where a vigorous attempt at divorce reform was made in 1897-1898 was Western Australia. Here too arguments were put forward, stressing the unhappiness that was being caused by the double standard, and the need for the relief of deserted wives. Mr. (later Sir Walter) James, a subsequent Premier, spoke in support of the Bill, linking the question of divorce extension with ‘that neglected quantity in this community - the women’98. James was a reformer, who had many social issues at heart, including women’s suffrage in which he was shortly to play a prominent part. In the present debate too he took up that question which was looming as one of the issues at the time. He linked it with the Premier Sir John Forrest’s implied statements that:

Women are not supposed to express an opinion on matters of public concern; that their opinions are adequately expressed by hon. members under the existing franchise. I hope the Premier will bear in mind, when discussing the question of womanhood suffrage, which will be brought up in this house in a short while, that he believes that women are entitled to be heard on this one question.99

Moving directly to the issue at hand, Mr. James put his views strongly:

Does the existing law require amendment? I think it is entirely wrong, if we are agreed on the general principle that some amendment is required, to oppose the Bill because some of the amendments may be wrong. One is placed in this difficult position that you think it may be wrong when conditions have arisen between a man and wife, when the tie becomes such that the parties to the marriage contract fail to discharge their duties to their children, and their social duties, when the marriage which ought to be elevating and ennobling becomes degrading — then are we not apt to think, when this state has arisen, that the time has come when this hollow mockery should be terminated, and people should not be compelled to live together all their lives in misery?100

In an editorial on 22 July 1898, The West Australian newspaper gives a detailed account of the debate. Many of the main arguments were summarised, as well as the reservations felt by many of the members as to some of its provisions and the desire to make further modifications to it. Of particular interest from the point of view of an Australian divorce law is the comment that the proposals would have put

The law in Western Australia on all fours with that in some of the Eastern colonies. … That a strong case can be made out for divorce of course goes without question. The right of the legislature to place man and woman on a different plane is disputed, it being contended that in regard to the marriage obligation both stand equal. It is further urged that of the two evils, where two persons are joined for life in the closest companionship, absolute separation is the lesser, and that a mere judicial separation without the right to re-marry only gives rise to worse mischief.101

It is the end of the 19th century. Divorce reform was not yet complete, but it was on the way. It would be another eleven years before Western Australia reached a comparable state of development as the other States, and another nineteen years for Tasmania to follow102. It was not until 1959 that uniformity was achieved, when the Commonwealth took over marriage and divorce from the States103.

A Look into the Future: the widening parameters of gender expectation

Where does divorce stand now, almost a century and a half after its introduction into Australia? What have been its effects upon Australian society?

The early years of the 20th century were years of consolidation. It was only in 1975 that the present system of family law was established. As a system, it was flawed, limited to marriage and divorce and areas ancillary thereto. Other important areas of family law remained within the competence of the states for constitutional reasons.104

The Family Law Act 1975 abolished all fault grounds and replaced them with the present ground of irretrievable breakdown. This, in effect, implemented the recommendations first enunciated by the English Law Commission in 1966 in its seminal report The Field of Choice105. The Act was an important reform, which has been discussed elsewhere106. In the present context it can be seen as but the latest step in a long drawn out process of reform towards women’s equality.

There have been significant attitudinal changes in public perceptions regarding the relationships between men and women and their relative status. Such things as illegitimacy, unmarried cohabitation, single mothers, maintenance and property division between unmarried partners, divorce itself, and the support given to some of these relationships by state and Commonwealth instrumentalities are today established features of the social fabric of our society. The stigma formerly attaching to some of these is all but gone. There may be criticisms as to the adequacy of some of that support system. But the very fact that it exists and that its existence is taken for granted today are an indication of how our society has changed since divorce became available.

The end of the Victorian era has seen the ending of many long established forms of social organisation. Relevantly for the present discussion, this included the beginning of the end of male dominance and the growth in the emancipation of women. It has been a slow process, which is by no means complete. Its steps, therefore, are not always discernible, until the reaching of some milestone, like achieving women’s votes, the admission of women to higher education, as members of parliament, as medical or legal practitioners and judges, as members of the police, the military, the clergy, including even bishops, and many other professions that were once closed to women.

Even today, however, at the beginning of a new millennium, some of these steps are still in their infancy. Where there have been breakthroughs, they have not yet resulted in anything like complete equality in fact, as well as in law.107 While women have been admitted to professions and careers on ostensibly equal terms that were formerly closed to them, their advancement in these professions has, in many cases, been significantly slower than that of their male counterparts. The saying that there is always room at the top must sound, to many young women embarking on a professional career as a cruel joke. Thus in the legal profession, for example, most of the top positions are almost invariably filled by men. Justice Michael Kirby, of the High Court of Australia described the situation in a recent address:

Although women now represent about 50 percent of the graduates of Australia’s law schools, five years after graduation there has been a big attrition. Women are significantly under-represented among the partners of law firms. They tend to congregate at the lower scale of earnings. Often they are confined to less interesting work.

A survey of the Victorian bar in July 1998 showed that women tend to be disproportionately engaged in shorter cases and cases involving family and criminal law. Men still get the lion’s share of big, important cases. Women are less likely to be briefed regularly than men. Among the 10 largest Melbourne law firms, 91 percent went to male barristers.108

What is important, however, for the purpose of the present discussion, is the realisation that the road to equality is no longer closed. As we look forward into the future, we may be conscious today of the limitations, of the obstacles with which that road is still littered. It is only when we look back that we become aware of the big steps forward that have been taken. They have resulted in a significant widening of the parameters of gender expectation, both among women and among the general public. With that comes a belief, amounting to a firm conviction, that the road ahead is not closed to the eventual achievement of complete and effective equality.

Notes

  1. Women and Marriage in Nineteenth Century England, Routledge, London 1989, at 8, 2.
  2. Matrimonial Causes Act 1858 (SA), The Matrimonial Causes Act 1860 (Tas), Divorce and Matrimonial Causes Act 1861 (Vic), Administration of Justice (Divorce and Matrimonial Causes) Ordinance 1863, (WA), The Matrimonial Causes Act of 1864 (Qld), Matrimonial Causes Act 1873 (NSW).
  3. Divorce and Matrimonial Causes Act 1857, 20 & 21 Vict. c. 85.
  4. Matrimonial Causes Act 1959 (Com).
  5. Eg in Thomas Hardy: The Mayor of Casterbridge. For a discussion of wife sales, see generally S P Menefee, Wives for Sale, 1981, Blackwell, Oxford.
  6. Sir James Mackintosh, The History of England, Vol 2, at 274, cited in the First Report of The Commissioners appointed by Her Majesty to enquire into The Law of Divorce, London 1853, at 12.
  7. Id.
  8. See, for example, the motion in the House of Commons in 1836 against the continuing practice of parliamentary divorce, quoted at fn 15.
  9. Of some 300 parliamentary divorces between 1669 and 1858, only 4 were granted to women.
  10. Macqueen, Husband and Wife, 1ed at 209, quoted by Percy Joske, Laws of Marriage and Divorce in Australia and New Zealand, 3rd ed, Sydney, Butterworths, 1952, at 8.
  11. Blackstone’s Commentaries, Oxford, Clarendon, 1765, Vol 1, 432-33.
  12. Dysart v Dysart (1847) 1 Rob Ecc 470 at 542, per Sir Herbert Jenner Fust.
  13. Friedrich Engels, The Origin of the Family: Private Property and the State, London, Lawrence & Wishart, 1942, at 137. Engels also said, with perhaps less exaggeration than one might think, that ‘within the family, [the husband] is the bourgeois, and the wife represents the proletariat’.
  14. See the description of the course of divorce proceedings in O R McGregor, Divorce in England, Heinemann, 1957 at 15-16.
  15. Quoted by Lord Lyndhurst, Hansard, Ibid., col 415.
  16. Hansard, Vol 31, 22/4/1836, at 116-120.
  17. Referring to the House of Lords, on whose practice for parliamentary divorce the Bill was based.
  18. At common law, a mother’s right to the custody of her children was so completely subordinated to that of the child’s father that he could claim possession of the child even by taking it from the mother’s breast; see the brief discussion in H Finlay & A Bissett-Johnson, Family Law in Australia, 1972, Sydney at 533-536. The mother’s rights were gradually increased during the 19th century.
  19. Hansard, 1857, Vol 147, cols 1267-1269.
  20. Meaning, of course, parliamentary divorce on the one hand, and on the other, the absence of a general law as administered by the Courts.
  21. Hansard, House of Commons, 7 August 1857, Vol 147, cols 1270-1278.
  22. Hansard, House of Lords, 12 May 1857, Vol 145, col 501.
  23. Ibid., col 498.
  24. Quoted by Lee Holcombe in Wives and Property, Oxford, 1983, at 105.
  25. R H Graveson and F R Crane, A Century of Family Law, London 1957, Sweet & Maxwell.
  26. O R McGregor, L Blom-Cooper and C Gibson, Separated Spouses, London (Duckworth) 1970, at 16.
  27. Hansard, 3 March 1857, Vol 144, col 1694.
  28. Ibid.,col 1693.
  29. Ibid., 19 May 1857, Vol 145, col 504.
  30. Ibid., col 1278.
  31. Ellis, The Women of England, 1839, at 155, quoted in Basch, Relative Creatures, 1947, which see generally for a very good attitudinal survey.
  32. Hansard, 1857, 25 May 1857, Vol 145, col 813.
  33. First Report of the Royal Commission on The Law of Divorce, 1853, at 9, fn 6. Cf the account of this subject in O R McGregor, Divorce in England, Heinemann 1957, Chap 1.
  34. Ibid, at 16, quoting from Mrs Moffat’s Case in the House of Lords, Session 1832. In that case, heard by a House of 25, 16 sided with Brougham, while 7 opposed him and sided with Lord Eldon, who was for allowing her application for a divorce on the ground of her husband’s simple adultery. The case is reported in John Macqueen, House of Lords and Privy Council Practice in Parliamentary Divorce, 1842, Maxwell & Son, at 658.
  35. Ibid, at 659.
  36. Thomas Gray:’Elegy written In a Country Churchyard’, 18th Century.
  37. Patricia Grimshaw and Charles Fahey, ‘Family and community in 19th century Castlemaine’ in Grimshaw and others: Families in Colonial Australia, Allen & Unwin, Sydney 1985, 83 at 90.
  38. Shirley Fisher, ‘The family and the Sydney economy in the late 19th century’, op cit., 153 at 157-58.
  39. Marilyn Lake, ‘Helpmeet, slave, housewife: women in rural families 1870-1930’, op cit, 173 at 182.
  40. Smith and Hogan, Criminal Law, 6ed, London, 1988. at 711.
  41. David Kent and Norma Townsend, ‘Some Aspects of Colonial Marriage: A Case Study of the Swing Protesters’, Labour History, No 74, May 1998, 40, at 42.
  42. Compare the Matrimonial Causes Act 1959 (Com), s 28(n) which enabled a decree nisi of divorce to be made on the ground that the other spouse was presumed to have been dead for 7 years. A marriage pursuant to such a decree was, of course, valid.
  43. ‘"Captain Swing"’ and Van Diemen’s Land’, Tasmanian Historical Research Association Papers and Proceedings, Vol 12, at 17 (1963).
  44. Charles A W Rocher: The Tasmanian Criminal Law Consolidation and Amendment Act of the 27th Vict, section 55, Hobart 1864, at 30-31.
  45. Alan Atkinson, The Europeans in Australia, Vol 1, OUP Melbourne, 1997, at 123-24,.
  46. Cf the accounts in Babette Smith, A Cargo of Women, Pan, 1988, NSW, - eg in Chapters 9 and 10.
  47. Mitchell Library, Marsden CY Reel 228, Vol 1, A1992, 547. I am indebted to Jenny Parrott for this and the Brigstock reference. This letter is also quoted by Babette Smith in A Cargo of Women, see previous fn at 88. Chapter 8 gives details of other cases where convicts and free emigrants who were previously married, formed new alliances.
  48. Contrast the reply of the Under Secretary quoted by Elizabeth Fry with the answer of the Secretary of State quoted in the Brigstock case, - see next footnote.
  49. Marsden CY, Reel 949 PC1/77.
  50. CO 18 Original Correspondence Colonial Office, AOT.
  51. Colonial Secretary 1835-1839.
  52. Divorce from bed and board, ie judicial separation, as distinct from divorce from the chains of matrimony.
  53. Loc.cit.
  54. Ie, that colonial parliaments should not be authorised to grant divorces.
  55. Loc. cit. I am indebted to Lea Finlay for information as to this correspondence.
  56. Ritchie, The Evidence to the Bigge Reports, Heinemann, Melbourne, 1971.
  57. Ibid, Vol 2, at 109-10.
  58. See, for example, the description cited by Joan Perkin of a statement by one Charles Shaw, whose family had been in the workhouse in 1842. This was known as the ‘Bastille’ for being harsh and punitive. When the children, whose mothers were inmates, were allowed to visit them for an hour on Sunday afternoons, ‘Bedlam was let loose for an hour…This was the one sweet merciful relief in the harsh discipline of the workhouse’. Perkin, op cit at 152.
  59. Now of the Australian National University.
  60. Peter McDonald, Marriage in Australia, ANU 1974, at 33.
  61. Morven S Brown in 'Changing Functions of the Australian Family' in A P Elkin, Marriage and the Family in Australia, Angus & Robertson, 1957, at 88.
  62. Anne Summers, Damned Whores and God's Police, Penguin Books, 1975; Portia Robinson, The Women of Botany Bay, Macquarie Library, 1988.
  63. Michael Sturma, 'The Eye of the Beholder: The Stereotype of Women Convicts 1788-1852', Labour History, 34 May 1978, at 6.
  64. Ibid, at 8.
  65. Report of the 1853 Royal Commission, see fn 6, and compare the dissenting report of Lord Redesdale.
  66. W D Borrie, The European Peopling of Australia, A Demographic History 1788-1988, Canberra: ANU, 1994.
  67. For an account of the introduction of divorce into the Australian colonies see H A Finlay: ‘Lawmaking in the Shadow of the Empire: Divorce in Colonial Australia’, Journal of Family History, Vol 24, No 1, January 1999, 74-109.
  68. Legislative Council Papers 1858, Vol III, Paper 14, Despatch: English Divorce Act.
  69. There follow another 10 paragraphs. - see CMH Clark, Select Documents in Australian History 1851-1900, Angus & Robertson 1955, at 362-65.
  70. The Divorce and Matrimonial Causes Act, (Eng), 28 August 1857.
  71. An Act to amend the Law relating to Divorce and Matrimonial Causes in South Australia, No 22 of 1858; and simil. In Victoria, No CXXV, 3rd July 1861.
  72. An Act to vest in the Supreme Court Jurisdiction in respect of Divorce and Matrimonial Causes, No 1 of 1860.
  73. An Ordinance to regulate Divorce and Matrimonial Causes, No 19, 1863.
  74. An Act to confer jurisdiction on the Supreme Court in Divorce and Matrimonial Causes, No IX of 1873.
  75. Hansard, House of Lords, Vol 142, 20 May 1856, col 401.
  76. Matrimonial Causes Act 1923 (Eng), s 1.
  77. Marriage Act 1958, ss 73, 74. (Vic)
  78. Matrimonial Causes Act 1959, (Com).
  79. The Advertiser, 6 December 1889.
  80. But see some of the articles in Helen Irving’s A Woman’s Constitution, Hale and Iremonger, Sydney 1996, for an account of some of the behind-the-scenes activities and more vocal expressions of women’s voices at a time when women lacked the official outlet for their views in parliamentary debates.
  81. South Australia in 1894, Western Australia in 1899, New South Wales in 1902, Tasmania in 1903, Queensland in 1904 and Victoria in 1908. The Commonwealth adopted adult suffrage in 1902. For a full account of the progress of women’s suffrage, see Oldfield, Woman Suffrage in Australia, 1992, CUP.
  82. See fn 70, above.
  83. Finlay, loc cit, fn 67 at 102.
  84. Copy of Despatch from HM’s Secretary of State for the Colonies, presented to both Houses of Parliament by His Excellency’s Command, Victoria No 16, at 72
  85. CO 13/99, 20/1/1859.
  86. CO 13/99, 1/6/1859.
  87. Hilary Golder, Divorce in 19th Century New South Wales, 1985, Sydney, at 8.
  88. Martha Rutledge, Sir Alfred Stephen and Divorce Law Reform in New South Wales, 1886-1892, M.A. thesis Australian National University, 1966.
  89. Matrimonial Causes Amendment Act 1881, 44 Vict c 31. Although hot formally linked with the assent, it presupposed a general consensus on the point among the Colonies.
  90. Note the gender-based discrimination between male and female respondents.
  91. For an account of these reforms, see Helen McCallum’s BA Honours thesis: William Shiels and Divorce Law Reform in Victoria 1883-1890, ANU, 1970.
  92. Ibid, at 71-72.
  93. Detailed accounts are found in Hilary Golder, op cit in the case of New South Wales, Rutledge, Sir Alfred Stephen and Divorce Law Reform in NSW 1886-1892, MA thesis, ANU 1966 for New South Wales and McCallum for Victoria.
  94. The Advertiser, 30 August 1888.
  95. Id.
  96. Id.
  97. Adelaide Advertiser, 6 December 1889.
  98. July 1898.
  99. Id.
  100. Id
  101. The West Australian, Friday July 22, 1898, Editorial.
  102. See Table 2.
  103. Marriage Act 1961, Matrimonial Causes Act 1959.
  104. H A Finlay: ‘The Marriage and divorce powers’ in the Oxford Companion to the High Court of Australia, (in preparation).
  105. Reform of the Grounds of Divorce: The Field of Choice, London, HMSO 1966, CMND 3123, and compare the Californian no-fault Family Law Act 1969.
  106. For a discussion of the Australian 12 months separation ground and its implementation, see H A Finlay, ‘The Grounds for Divorce: The Australian Experience’, Oxford Journal of Legal Studies, (1986) 6, 368 (a paper presented at a Law Commission Seminar at Bristol in November, 1985).
  107. Thus there has ever only been one female Justice of the High Court of Australia and in the matter of State Governors or Premiers it has also hardly got beyond the state of tokenism. There has not yet been a female Governor General or Prime Minister of Australia.
  108. Excerpt from Justice Michael Kirby’s Lesbia Harford Oration, reported in the Melbourne Age on 21 August 2001, at 15.


© Henry Finlay
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