Divorce: Dilemma For Early Americans

by Betty Malesky | Jun 21, 2012

Betty Malesky

Divorce is not the 20th century phenomenon it might seem to be. It's nearly as old as creation. Marriage was instituted by God and man countered by inventing divorce. The French philosopher Voltaire stated that with the practice of formalized marriage the concept of divorce flourished.

Basis for Colonial Divorce Laws

Laws covering divorce have always varied from one country to another. When Europe was predominately Catholic divorce was forbidden by the Church. England's Henry VIII changed that when his queen could not bear a son and he wanted another wife. He became the head of the Anglican Church of England and obtained his divorce. Church courts in Britain still retained the power to dissolve marriages. Later laws were changed so that divorce was granted by an Act of Parliament, mainly to men and so expensive that only the rich could afford it.

To Protestants, marriage was ordained by God for the purpose of procreation so few grounds for divorce were morally defensible. Martin Luther argued that divorce was acceptable if one party refused conjugal duty; he also believed adultery was grounds for divorce and quoted the Bible to back up his theory, i.e., marriage is dissolved by death (Romans) and adultery is punished by death (Deuteronomy).

Since the British founded the American Colonies the British legal system was the model for colonial legal practices. Early divorces had to be approved by the governor and the court. In the Massachusetts Bay Colony, divorce was legalized in 1629 for reasons of adultery, desertion with evidence the wayward party did not intend to return and/or cruelty by the husband. The tendency was to believe a nagging wife drove a husband to beat her, and she would have to prove she had been dutiful and had not provoked him.

Due to the double standard of the time, a woman had to have multiple grounds while a man could divorce on grounds of adultery only. While laws favored the husband, a determined wife whose spouse was abusive, adulterous, and/or absent could be free of him if she could provide witnesses to his errant behavior. Between1636 and 1698, there were just 44 divorce petitions in Massachusetts.

Colonial Divorces of Note

The first divorce in the colonies was granted in Puritan Massachusetts to Mrs. James Luxford because her husband was a bigamist. Few details survive, but her husband was fined, put in the stocks, and then exiled back to England. Five years passed before another divorce action was granted.

In 1643 the Boston Quarter Court allowed Anne Clarke to divorce her husband. Denis Clarke signed an affidavit in which he admitted abandoning his wife for another woman, and having two children with each woman. He refused to return to his wife leaving the Court no choice but to punish him and grant his wife a divorce. The Quarter Court's final decision read: "Anne Clarke, beeing deserted by Denis Clarke hir husband, and hee refusing to accompany with hir, she is graunted to bee divorced."

The most notorious colonial divorc´┐Że is undoubtedly Herodias Long. John Hicks married Herodias in England when she was age thirteen. The couple arrived in Massachusetts in 1637 and moved to Rhode Island the following year. In March 1644/5 Hicks was in Court charged with beating his wife. The case was continued until she came in and gave evidence but he immediately fled to Long Island. In June 1655 Governor Peter Stuyvesant's New Amsterdam Court granted Hicks a divorce upon his claim that Herodias had run away from him "about nine years ago," married someone else and had 5 or 6 children.

Meanwhile Herodias lived in Newport, Rhode Island as the common law wife of George Gardiner by whom she had several children. She became an ardent follower of the Quaker, George Fox, and in 1658, "with a babe sucking at her breast" she walked to Weymouth, Massachusetts to bear witness of her faith. By this time, Gardiner had had enough and asked Rhode Island Governor Benedict Arnold to grant him a separation from his wife.

Herodias presented a long and heart-rending testimony of her difficult life and suffering at the hands of Gardiner, despite "never [being] lawfully married to him" and living "all this time in that abominable lust of fornication . . . ." A separation was granted 3 May 1665 and the couple was ordered to stop leading so scandalous a life. As a consequence of this case the state of Rhode Island reinforced the Act of 1647 disallowing common law marriage and making children of such marriage illegitimate.

At the same time, John Potter, one of the most influential men in Portsmouth, Rhode Island, had left his wife Margaret in dire straits. Margaret petitioned the State Assembly for support because her husband was "destitute of all congugall love towards her and . . . gone from her." John was arrested and granted a divorce from Margaret on 27 June 1665 after making provision for her for the rest of her life, whereupon he promptly married the redoubtable Herodias Hicks. They evidently lived happily together until her death in 1712. These early cases are notable as they seem to favor women.

Divorce Outside New England

Outside of New England, it was generally more difficult to obtain a divorce. The middle colonies, New York, New Jersey, and Pennsylvania allowed divorce for adultery or in some cases, desertion, by petition to the governor or the state legislature. Divorce could be obtained in New York until the late 1800s only on grounds of adultery and the guilty party was denied the privilege to remarry. The innocent party seeking the divorce normally had to provide proof of the other party's guilt. Since it was often impossible for one spouse to prove accusations against the other, many entered into collusion with either of them agreeing to accept guilt and commit perjury in order to obtain the divorce.

Maryland, predominantly a Catholic state, granted only about 30 divorces a year. Further south, Anglican doctrine prevailed, but the average citizen was becoming more secular minded. In 1772, Thomas Jefferson was the defense for a couple seeking separation. He noted he not only favored divorce for adultery, but also when a marriage was "struck by incompatibility." His mindset was slowly becoming the norm. Post-revolution Americans were eager to enjoy various freedoms, not just from British rule but from existing religious and societal standards.

Absolute divorce was not legal in colonial North Carolina. A few separations were granted by the General Court with a provision for separate maintenance or alimony. Similarly, South Carolina did not allow an absolute divorce until the Divorce Act was passed in 1949 and placed under the jurisdiction of the Court of Common Pleas.

Post Civil War Divorce Escalates

As the divorce rate climbed in the mid 1800s, jurisdiction in most states moved from the legislature to the courts. After the Civil War divorce cases escalated all over the country. Families separated for the duration of the war didn't always want to reunite. Many men found it easier to disappear in the west rather than return to their families leaving the wife to file for desertion. Civil War pension files often reveal cases where two women are seeking a pension for the same spouse, neither wife aware of the other.

While society became more liberal, the stigma of divorce was still felt by those involved. Women especially tried to avoid the label divorc´┐Że, often calling themselves widows despite the fact they still had a living spouse if separated, or ex-spouse if divorced. To admit to divorce was an admission of inferiority or rejection. Widowhood, on the other hand, could not be construed to have been the widow's fault. Into the mid 1900s census records reveal widows for whom divorce actions can be found in the courts.

Since divorce may have been covered up by the family and its occurrence lost to history, watch for clues where it might have occurred in a family. If a woman suddenly becomes a widow, with no evidence of death of her spouse, divorce may be suspected.

Locating Divorce Records

Finding divorce records can be a challenge depending on the time period involved. Colonial records may have been moved to the applicable state archive. If not there, the archivists may be able to identify the repository where they are found. Legislative divorce records likely also reside in the state archives. Once divorce became a court matter, look in the applicable county where the divorce occurred. As the west was settled, divorces were filed in territorial courts prior to statehood.

In a divorce action the plaintiff is the person who filed for divorce; the defendant is the guilty party against whom the charge is filed. Divorce is a public record and even current records should be readily available for research.

Archives.com will search U.S. divorce records when the name of one party and the location of the divorce are known. Search results will include the names of both persons, location, date and certificate number of the divorce. A certified copy of the divorce decree may be obtained for $65 via the form provided on the website.

Divorce files are interesting and can aid in family research. Relationships, ages and names of children, occupations and residence of parties involved, in addition to the reason for the divorce action, are just a few of the details to be found in the records.

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