I bought this book primarily because I was confused by the historic application of the law on bigamy. I knew of a ‘seven-year rule’ for spouses living apart and a ‘presumption of death’ if there had been no contact during this seven-year period, but I also knew there was more to it than that. What, exactly, were the rules for remarriage without divorce in our ancestors’ times? As confusing as this might be for us, I quickly learned that it was frequently misunderstood by our ancestors too.
The full title of Rebecca Probert’s book is Divorced, Bigamist, Bereaved: the family historian’s guide to marital breakdown, separation, widowhood and remarriage: from 1600 to the 1970s. In it, she sets out the law, including changes over this period, in five chapters: Divorced, Separated, Bigamist, Bereaved and Remarriage to the Same Person. The rules are illustrated with actual cases and contemporary newspaper stories, as well as question and answer sections.
It’s as well to start with the law on divorce, since it was the inaccessibility of that for most people that forced many to resort to the alternative, non-legal options. In England and Wales, the Reformation hadn’t changed the central tenet that marriage, once validly entered into, was indissoluble except by death. However, from the 1660s, wealthy men were able to secure private Acts of Parliament allowing them, on the grounds of adultery of the wife, to consider the marriage at an end, and to remarry as if their erstwhile spouse were ‘naturally dead’. Even at the time it didn’t go unnoticed that the rich could effectively buy their right to the freedom to remarry, while the poor faced serious criminal charges and severe punishment if they did the same.
It wasn’t until 1858 that the possibility of divorce was opened up to all. Even so, the court and legal costs, travel expenses to London to the Court for Divorce and Matrimonial Causes, and the travel and accommodation expenses of all witnesses if the petition was contested, would clearly put this remedy out of reach for the vast majority of people. And even then, prior to 1937 the only ground on which a man could divorce his wife was adultery; while until 1923 a woman could bring an action for divorce only on the grounds of adultery combined with an aggravating factor, being: incest, bigamy, cruelty, desertion, rape, sodomy or bestiality.
Little surprise, then, that so many of us come across ancestors who seem to have remarried without having divorced the original spouse. Of course they are easier for us to spot in the censuses than before 1841. We find them ‘married’ with a new spouse, although we can clearly see their original spouse, still very much alive, a few streets away, ‘widowed’, ‘unmarried’ or perhaps also ‘married’ to someone new. Whatever the circumstances, any such marriage is bigamous, and in earlier times the punishment would have been death, transportation, imprisonment or branding. In the absence of a divorce / private Act of Parliament dissolving the former marriage, the only airtight ground for remarriage was the confirmed death of the original spouse. However, by the early 19th century the courts developed a presumption that a spouse who had not been heard of for seven years could be presumed dead. This, then, is the origin of the much-misunderstood ‘seven-year rule’. However, even then, there was an expectation that the remaining spouse genuinely believed their husband/wife to be dead, and had made efforts to find them. Simply living apart for seven years did not qualify. And even after an absence of many, many years, if the absent spouse turned up alive, the marriage would once more be valid, any interim marriage void, and any offspring of that second marriage retrospectively illegitimised.
Alongside situations like this there are of course cases of bigamy where the perpetrator’s behaviour is blatantly criminal – bigamy with intent to defraud the new spouse out of her inheritance; ‘spontaneous’ bigamy (speeded up by obtaining a licence) designed purely so that the perpetrator could have his wicked way, with the full intention of leaving her the next day… In time, the courts would come to distinguish between those acting with such criminal intent and those who simply didn’t understand, or who at the very least were just trying to move on with their lives after a failed union. The latter would still be found guilty, the second marriage still void, but the actual punishment much reduced.
Rebecca Probert cites letters in newspaper advice columns requesting guidance on whether remarriage in certain situations would be legal. There’s no doubt that people didn’t understand the law; or if they did, they saw little to respect in a system so absurd that different rules regarding the sanctity of marriage applied to the haves and the have-nots. Gradually, this came to be understood even by the courts, and after World War I the law started to move towards the divorce provisions we have today. (Incidentally, if you watched the final episode of A House Through Time series 2 (Newcastle), the expert who talked to David Olusoga about the post-WW1 bigamy and divorce situation was Rebecca Probert. Perfect timing! 😊)
It definitely helps to understand the context when we come across questionable behaviour by our ancestors. It’s easy to have this mental picture of a bigamist as the person in the driving seat – the one who decides to marry twice (or more), stringing all other parties along and leaving havoc in their wake. But this book introduces us to those who married bigamously because they were the ones who had been deserted, when finding a new partner was their own best chance at survival. Take as an example a woman whose husband has deserted her and her young children. With little chance of being able to support her family long-term, she has the choice of relying on the charity of the parish Guardians – which may lead to admission to the workhouse or at the very least having the children taken away and sent as ‘parish apprentices’ to the northern textile mills (see previous post about Robert Blincoe); or marrying again. And yet in marrying again – probably the preferred option from the persepctive of the local parish Guardians – she would be committing bigamy.
Although I started this book wanting to understand more about the law surrounding bigamy, it has helped several other puzzles fall into place. In particular, I’ve made my peace with my natural 2xG grandmother whose divorce petition was… not absolutely truthful.
This is an easy and enjoyable book, to read through once to get the overview, and then to keep on your bookshelf to consult when you need the detail, as new ancestral marital situations come to light.