How to End a Marriage in 18th Century America

 How to End a Marriage in 18th Century America
By Jessica Bryant

Education & Public Programs Associate Jessica Bryant details the history of divorce and the role it played in the lives of Americans during the Revolutionary Era.

For many contemporary readers, the idea of divorce in the 18th century seems anachronistic. A generalized view of this period would give the impression that divorce was uncommon and reserved for isolated occasions amongst the wealthiest members of society. This view had a basis in the legal system of Great Britain, but the culture surrounding marriage and divorce in the American colonies was complex and approaching a moment of transition.

To understand the process of divorce in 18th century America, one must first look at the English law and how that law was embraced and altered by the colonies. There were three legal ways to end a marriage in the 18th century Anglo-American legal system. The first was absolute divorce; this was the end of a marriage where the parties were fully removed from the union, and both had the right to remarry.[1] The second was divorce of bed and board, also called divorce a mensa ed thoro. This was a legal decree that two spouses no longer lived together as husband and wife, what modern law might call a legal separation. The husband might be responsible for alimony payments, and neither spouse was allowed to remarry.[2] The third was annulment, also called divorce a vinculo matrimonii; this was a decree that there was some impediment at the beginning of the marriage, making the entire marriage invalid and wiping it from the record as if it never existed.[3] Of these three, annulment was the only one allowed under Catholicism. Although England became a Protestant country in 1533, the Church of England was highly influenced by the Catholic Church and only allowed annulments and divorces of bed and board in the ecclesiastical courts.

In 1700, after the divorce of the Duke of Norfolk, Parliament decided that divorce could fall within its power, and they created a system of legislative divorce. This was a restrictive and expensive procedure that only allowed for absolute divorce in cases of adultery, where the petitioner was the husband. Adultery had to be compounded by cruelty or bigamy if the petitioner was the wife.[4] This system of divorce was the most influential in determining historical notions of divorce laws, giving the impression that only a small number of elite people could divorce in the 18th century, and restricting the historic interpretation of divorce to absolute divorces.

Many of the southern colonies in North America took their laws almost directly from the British laws. In Virginia, the legislative model of divorce was adopted after the American Revolution and remained in place until 1850. Because so many people wanted legislative divorces, the Virginia legislature was overwhelmed and found limited time for normal governance.  A judicial divorce system was set up gradually. First, couples could present a petition for divorce to a chancellery court where the judge would rule in cases of adultery. Eventually, all divorces were under the control of the courts to eliminate a confusing system where judicial and legislative divorce existed simultaneously.[5]  This change in Virginia, and other southern colonies, was part of a shifting culture that was beginning to associate marriage and divorce with issues of natural law and freedom.

One of the influences in defining divorce in terms of natural law was the legal arguments created around the marriage of Dr. James Blair and Kitty Blair.  James Blair was the son of a powerful Virginian family whose father was the president of the governor’s council and a two-time acting Governor of Virginia.[6] Kitty Blair nee Eustace was the extremely well-educated daughter of an Edinburgh trained doctor who had emigrated to the colonies to pursue economic opportunities.[7] Around 1770, Kitty and her mother settled in Norfolk, Virginia where they became acquainted with Dr. Blair. Kitty’s mother saw James as a desirable match for her daughter and through her “clever managing” ensured the marriage.[8] James and Kitty married on May 21, 1770, but the social desirability of the marriage did not make the two compatible and almost immediately, they separated.[9] There was some speculation that the issues in this marriage were caused by James’s mental state. Supposedly James had been forced to end his studies in London by a “violent nervous disorder” six months before his marriage.[10] In the nineteen months between their marriage and James’s death in December of 1772, Kitty and James made multiple attempts to end their marriage. Kitty sued for separate maintenace, a divorce a mensa ed thoro or legal separation, early in 1772, but her request was denied in the hopes that community intervention could force a reconciliation. This was not uncommon. Judges often tried to convince couples to forgo separation and attempt to fix the marriage. This attempt failed, and James began preparing a case to ask the Virginia House of Burgesses for a legislative divorce. Through his family contacts, James was able to hire Thomas Jefferson to handle his divorce.

Jefferson’s notes on the case survive and are currently held at the Library of Congress. Because it was not certain that he could prove adultery, Jefferson outlined the arguments he planned to use in convincing the Virginia legislature to set new precedence. These arguments include philosophical and scriptural references to justify divorce on the basis of incompatibility. In a quote that sounds almost feminist to a modern ear, Jefferson referred to Montesquieu saying, “[Divorce] Restores to women their natural right of equality. Cruel to confine Divorce or Repudiation to husband who has so many ways of rendering his domestic affairs agreeable, by Command or desertion, whereas wife confined & subject.“[11] The quote showed the more radical direction Jefferson was willing to take to essentially create new divorce laws. The phrasing also showed that these notes were in their preliminary stage. Jefferson had about a month to put together this argument before James Blair died.

Unfortunately, this affair did not end when James Blair died. Perhaps because the two never settled into any sort of married life together, James made no provision for Kitty in his will. Traditionally a widow would be given a dower, a portion of her husband’s property to survive on. Generally, the portion would be one third of the husband’s wealth, including enslaved people.[12] Thomas Jefferson’s role in this ongoing legal dispute continued when Kitty sued for her dower and James’s brother John hired Jefferson to represent James’s estate. Jefferson did not argue the case in court, but he probably helped build the argument for the defendant. Once again, he argued against the legal precedent, trying to prove that Kitty was not entitled to a dower given her lack of residency with him and their ongoing attempts to separate. This time the case was completed. The established precedent was maintained, and Kitty won.

The divorce case of James and Kitty Blair was an example of a wealthy, politically connected couple who might have been able to take advantage of the limited divorce options available to them in 18th century Virginia.  However, the unique circumstances of their case, namely the lack of proven adultery and the precedent setting arguments created by Jefferson, meant that this was more than a typical case. This was a foreshadowing of what would come and a microcosm of the ideological shifts that were altering the way Virginians thought about divorce. Thomas Jefferson, who had not yet written the Declaration of Independence, used this case to express his thoughts on natural laws and the application of natural law to civil liberties. If citizens had an inherent right to freedom, then it would follow that they had the right to be free from unwanted marriages.

Alternatively, the northern colonies, especially Puritan colonies in New England, had a long history of judicial divorce. New Englanders embraced the Protestant mentality of divorce, where marriage was a civil contract that should be regulated by the state and, divorce was acceptable because it allowed people in failed marriages to remarry and not be forced into celibacy.[13] It also made logistical sense to have civil divorces because there were not enough members of the clergy in the colonies to set up ecclesiastical courts. The first absolute divorce in Massachusetts was granted in 1643, and there was a legal separation recorded eight years earlier in 1635.[14] Even with this wider acceptance, divorces were only granted because of the fault of one spouse on the grounds of “adultery, long absence, or irremediable cruelty.”[15]

Although legal divorces and separations were more prevalent than the strictures of 18th century law might suggest, one of the greatest hindrances to understanding the end of marriages in this time was that not all marriages ended legally. While there were plenty of people who petitioned for divorce or separation, there were many, especially women, who knew that their petition might be denied and chose to end their marriages without the help of the law. For people in unhappy marriages, desertion was “the easiest method to quit a miserable situation.”[16] There were no court fees, there was no potential for denial, and after a specific period the abandoned spouse could use the desertion as grounds for a valid divorce.  As the less mobile members of a marriage, women were more likely to be abandoned by their husbands and petition for divorce on that basis. The restricted movement of women was partially due to a married women’s status as a femme covert. Under the common law adopted from England, a married woman was “covered” by the legal status of her husband, making the wife a dependent and the spouses a single entity in the eyes of the law.[17] A married woman could not earn money without it legally belonging to her husband, and her husband needed to provide for her financially. If the husband refused to do that, he was in breach of the marriage contract, more so even than if he had committed adultery. A husband’s abandonment of this financial responsibility was as an economic burden on the community, who would be obligated to assist the abandoned wife, and a woman in this circumstance would be looked on favorably in divorce proceedings.

The higher number of abandoned wives did not mean that there were no abandoned husbands. Women did desert their husbands and left a record of it in the form of runaway wife advertisements. Because men were responsible for the economic support of their wives, men would take out advertisements in local newspapers to affirm that their wives had abandoned them and preemptively deny their responsibility for any debt their wives accrued in their new lives. In an ad from The Pennsylvania Packet, Gibbins Sheppard wrote, “This is therefore to forewarn all persons from trusting her on my account, as I am determined to pay no more debts of her contracting after the date hereof.”[18] Three years later, Nathaniel Fatharby wrote in The Pennsylvania Gazette, “I give notice to all persons not to have any dealings with her on my account, as I will pay no debts of her contracting after this date.”[19] Given their role as the economic backbone of the family unit, men needed this assurance that their wives would not accrue debt and ruin them financially, especially if they wanted to continue supporting a family or to build a new one.

Many of these advertisements included accusations of immorality, adultery, or theft, allowing the husband to portray himself as the victim of an unvirtuous women.[20]  In a 1784 advertisement in The Pennsylvania Gazette, Joseph Milam claimed that his wife Jane Milam “eloped from me without just cause, she having married another in my absence.“[21] In that same year, David Johnston wrote that his wife Mary Johnston had “eloped from my bed and board, and lives with a certain John Crider, junior, as man and wife.”[22] And Nathaniel Fatharby wrote that his wife “absconded from my bed and board, and likewise made away with my effects.”[23] These advertisements proved that women did choose to abandon hopeless marriages despite the risks. They spoke to the marital responsibilities placed on each spouse and showcased the role reputation played in dissolving a marriage. Before the existence of no-fault divorces, someone had to take the blame, and the person who did faced a worse position in society after divorce

Women who petitioned for divorce were likewise very intentional in showing themselves to be good and obedient wives who could not overcome the cruelty or immorality of their husbands. Given the types of behavior available as grounds for divorce in the 18th century, this portrayal of wives as victims of cruel or uncaring husbands was rarely far from the truth, but its emphasis spoke to the standard of morality and obedience to which women were held. This moral double standard can clearly be seen in the prohibition of divorces where both parties were at fault. Even in Massachusetts with its early embrace of divorce, were a woman to run away from her abusive husband she could not be the one to petition for a divorce, because she ran away.  Without a divorce, anything a woman owned before marriage or earned after running away still belonged to her abusive husband. Despite having cause for divorce, her abandonment would still put them both at fault. For a woman to obtain a divorce she had to be seen as sympathetic, regardless of her husband’s actions.

The power imbalance between husband and wife, and the accompanying double standard of morality, coexisted with an evolving concept of marriage. In this transition, society increasingly defined the marital relationship as one of friendship, where despite a man’s legal ability to dominate his wife, affection would lead them to mutual companionship. As said by Abigail Adams, "But such of you as wish to be happy willingly give up the harsh title of Master for the more tender and endearing one of Friend."[24] This belief that a good husband would not abuse his power over his wife was dangerous because it relied on the emotions of the husband rather than legal protection for the wife. As this idea gained traction, it altered what women expected of marriage and what they were willing to endure. This evolution was one aspect of the change brought by a society in upheaval. Divorce became more accessible as America became more attached to the ideas of freedom, independence, and marital harmony.

 Despite this shifting society, the law was not as advanced as the ideals. Divorce was still inaccessible for many who did not have the financial stability to survive as an unmarried person or the social respectability to bring their case to court. Many forms of self-divorce were created out of necessity. One non-legal form of divorce existed in the separation of couples whose marriage was never legally acknowledged.

Marriage within the Enslaved Community

 In the 18th century enslaved people, who were considered property by the law, did not have a legal right to marry. Marriages happened anyway, but because they were not acknowledged by the colonial and early American governments, their termination was not acknowledged either. A record from 1731 explained the ceremony for marriage in an enslaved community in North Carolina. In a process that resembled traditions from Atlantic Africa, a man could give a woman a small gift that she would accept to signal her consent to marry. If the two wished to divorce she would return the gift.[25] Similarly, for couples who married by jumping the broom, divorce was signified by jumping backward over a broom.[26] Although these practices are recorded the number of marriages that ended this way is not known .

Within 18th-century American divorce, there were multiple cultures and traditions coexisting. Understanding as many of them as possible gives a broader view of how this increasingly diverse society approached marriage and divorce. A lack of documentation and full context can give the impression that marriage in the 18th century was an implacable state of being. Looking at the nuance and fluidity of the early American family and social structure shows that divorces were happening and even increasing at this time.

Bibliography

Areen, Judith. “Uncovering the Reformation Roots of American Marriage and Divorce Laws.” Yale Journal of Law and Feminism. Vol. 26, (2014): 29-85.  https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2498022.

Cott, Nancy F. “Divorce and the Changing Status of Women in Eighteenth-Century Massachusetts.” The William and Mary Quarterly. Vol. 33, No. 4 (Oct. 1976): 586-614. https://www.jstor.org/stable/1921717.

Crane, Elaine Forman. “Political Dialogue and the Spring of Abigail's Discontent,” The William and Mary Quarterly 56, no. 4 (1999): 745-774, https://doi.org/10.2307/2674234.

Dewey, Frank L. “Thomas Jefferson and a Williamsburg Scandal: The Case of Blair V. Blair.” The Virginia Magazine of History and Biography 89, no. 1 (1981): 44–63. http://www.jstor.org/stable/4248451.

Dewey, Frank L. “Thomas Jefferson’s Notes on Divorce.” The William and Mary Quarterly 39, no. 1 (1982): 212–23. https://doi.org/10.2307/1923425.

Foster, Thomas A. Editor. Documenting Intimate Matters: Primary Sources for a History of Sexuality in America. Chicago and London: The University of Chicago Press, 2013.

Parry, Tyler. “Enslaved People and Divorce in the African Diaspora.” AAIHS. Last Modified April 2, 2018. https://www.aaihs.org/enslaved-people-and-divorce-in-the-african-diaspora/.

President and Fellows of Harvard College. “Women and the Law.” Women and the law. Accessed February 15, 2022. https://www.library.hbs.edu/hc/wes/collections/women_law/.

Riley, Glenda. “Legislative Divorce in Virginia 1803-1850.” Journal of the Early Republic. Vol. 11, No. 1 (Spring, 1991): 51-67, https://www.jstor.org/stable/3123311.

Smith, Merril. Breaking the Bonds: Marital Discord in Pennsylvania: 1730-1830. New York: New York University Press, 1991.

Sword, Kirsten. “Rethinking the Revolutionary Road to Divorce.” Chapter. In Wives Not Slaves: Patriarchy and Modernity in the Age of Revolutions. Chicago: The University of Chicago Press, 2021.

Wolfram Sybil. “Divorce in England 1700–1857.” Oxford Journal of Legal Studies 5, no. 2 (1985): 155–86. https://doi.org/10.1093/ojls/5.2.155.

Footnotes

[1] Judith Areen, “Uncovering the Reformation Roots of American Marriage and Divorce Laws,” Yale Journal of Law and Feminism, Vol. 26 p 29-85, (2014): 33,  https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2498022.

[2] Ibid.

[3] Ibid.

[4] Sybil Wolfram, “Divorce in England 1700–1857,” Oxford Journal of Legal Studies 5, no. 2 (1985): 157, https://doi.org/10.1093/ojls/5.2.155.

[5] Glenda Riley, “Legislative Divorce in Virginia 1803-1850,” Journal of the Early Republic, Vol. 11, No. 1 (Spring, 1991): 51-52, https://www.jstor.org/stable/3123311.

[6] Frank L. Dewey, “Thomas Jefferson and a Williamsburg Scandal: The Case of Blair V. Blair,” The Virginia Magazine of History and Biography 89, no. 1 (1981): 44, http://www.jstor.org/stable/4248451.

[7] Kirsten Sword, “Rethinking the Revolutionary Road to Divorce,” in Wives Not Slaves: Patriarchy and Modernity in the Age of Revolutions (Chicago: The University of Chicago Press, 2021), 254.

[8] Ibid, 255.

[9] Dewey, “Thomas Jefferson and a Williamsburg Scandal,” 44-45.

[10] Sword, “Rethinking the Revolutionary Road to Divorce,“ 255.

[11] Frank L. Dewey, “Thomas Jefferson’s Notes on Divorce,” The William and Mary Quarterly 39, no. 1 (1982): 219, https://doi.org/10.2307/1923425.

[12] Dewey, “Thomas Jefferson and a Williamsburg Scandal,” 46.

[13]Areen, “Uncovering the Reformation Roots,” 70.

[14] Ibid.

[15] Nancy F. Cott, “Divorce and the Changing Status of Women in Eighteenth-Century Massachusetts,” The William and Mary Quarterly, Vol. 33, No. 4 (Oct., 1976): 589, https://www.jstor.org/stable/1921717.

[16] Merril Smith, Breaking the Bonds: Marital Discord in Pennsylvania: 1730-1830 (New York: New York University Press, 1991), 141.

[17] President and Fellows of Harvard College, “Women and the Law,” Women and the law, accessed February 15, 2022, https://www.library.hbs.edu/hc/wes/collections/women_law/.

[18] Thomas A. Foster, ed, Documenting Intimate Matters: Primary Sources for a History of Sexuality in America, (Chicago and London: The University of Chicago Press, 2013), 41.

[19] Ibid.

[20] Ibid, 139.

[21] Ibid.

[22] ibid, 41-42.

[23] Ibid, 41.

[24] Elaine Forman Crane, “Political Dialogue and the Spring of Abigail's Discontent,” The William and Mary Quarterly 56, no. 4 (1999): 754, https://doi.org/10.2307/2674234.

[25] Tyler Parry, “Enslaved People and Divorce in the African Diaspora,” AAIHS, last modified April 2, 2018, https://www.aaihs.org/enslaved-people-and-divorce-in-the-african-diaspora/.

[26] Ibid.