EARLY MODERN SEPARATION AND DIVORCE

In early modern England once a man and woman were validly married they remained bound to each other for as long as they lived, for better or worse, because divorce in its modern sense was not available. If a marriage failed the church courts were sometimes able to grant an order for one of two kinds of divorce, but neither corresponds to the modern law of divorce. Firstly, the church courts could grant a divorce a vinculo matrimoni. Here a marriage was annulled if the courts found a ‘dirimentary impediment’ making the marriage void ab initio – it had never existed. The parties could then be free to marry again. Secondly, the church courts could make an order for a divorce a mensa et thoro. Here husband and wife were freed from their legal duty to cohabit, but they were not free to remarry. This kind of divorce more nearly corresponds to modern judicial separation.

By Shakespeare's age these were the only forms of divorce allowed in England, but this had not always been the position in Europe. The early Church in the centuries following Christ's death had allowed divorce for certain matrimonial offences including adultery, and even in Anglo-Saxon England divorce and remarriage had been available. In the early middle ages the Church had not been able to make clear distinctions between marriage and concubinage.