1 20 & 21 vict., c. 85.Google Scholar

2 According to the 1857 Act, sec. 27:Google Scholar

It shall be lawful for any Husband to present a Petition to the said Court, praying that his Marriage may be dissolved, on the Ground that his Wife has since the Celebration thereof been guilty of Adultery; and it shall be lawful for any Wife to present a Petition to the said Court, praying that her Marriage may be dissolved, on the Ground that since the Celebration thereof her Husband has been guilty of incestuous Adultery, or of Bigamy with Adultery, or of Rape, or of Sodomy or Bestiality, or of Adultery coupled with … Cruelty … or of Adultery coupled with Desertion, without reasonable Excuse, for Two Years or upwards.Google Scholar

3 13 & 14 Geo. 5, c. 19.Google Scholar

4 Parl. Deb., Lords, 3d ser., 145 (25 May 1857): 814; Commons, 147 (7 Aug. 1857): 1283.Google Scholar

5 Royal Commission on Divorce and Matrimonial Causes: Minutes of Evidence (3 vols. London: HMSO, 1912) (Minutes of Evidence are cited by volume, page, and question).Google Scholar

6 Parl. Deb., Lords, 5th ser., 54 (26 June 1923): 610; Commons, 164 (8 June 1923): 2658.Google Scholar

7 Lawrence Stone, Road to Divorce: England, 1530–1987 at 396 (Oxford: Oxford University Press, 1990) (“Stone, Road to Divorce”).CrossRefGoogle Scholar

8 In Putting Asunder: A History of Divorce in Western Society 500 (Cambridge: Cambridge University Press, 1988) (“Phillips, Putting Asunder”), Roderick Phillips has noted that England was one of the last countries to remove the double standard from the divorce laws. The British colonies, France, and Germany all preceded England in the reform; the United States and Scandinavia had never incorporated a double moral standard into their divorce statutes.Google Scholar

9 These courts would, however, grant divorce a mensa et thoro (from bed and board) on the grounds of adultery, cruelty, or sodomy. Such a “divorce” was really the equivalent of a modern judicial separation in that, legally, the parties remained married. C. E. P. Davies, “Matrimonial Relief in English Law,” in R. H. Graveson & F. R. Crane, eds., A Century of Family Law 314 (London: Sweet & Maxwell, 1957) (“Graveson & Crane, Century of Family Law”). Some scholars, including Davies, believe that the ecclesiastical courts may have granted divorces a vinculo matrimonii during the late 16th century. The sources are open to interpretation. Since some individuals improperly remarried when only separated from their spouses, divorces a mensa et thoro may have been confused with divorce a vinculo. Harvey Couch, “The Evolution of Parliamentary Divorce in England,” 52 Tul. L. Rev. 513, 515, 516 (1978). According to Lawrence Stone, it was only at the end of the century, during the years between 1597 and 1603, that the English Church and state made it clear that the courts would not grant divorces a vinculo. Stone, Road to Divorce 305.Google Scholar

10 Morris Finer & O. R. McGregor, 1 Hislory of the Obligation to Maintain: Report of the Committee on One-Parent Families 29 (London, 1974) (“Finer & McGregor, 1 History”). Stone has described the development of parliamentary divorces in Road to Divorce 301–46. His inclusion of statistics and graphs reinforces and illuminates his analysis.Google Scholar

11 Finer & McGregor, 1 History 35, 36, and Stone, Road to Divorce 360–62.Google Scholar

12 Parl. Deb., (Lords), 3d ser., 142 (26 June 1856): 1978. See Keith Thomas, “The Double Standard,” 20 J. Hist. Ideas 195–216 (April 1959), for an analysis of the origins of the double standard.Google Scholar

13 Parl. Deb., Lords, 142 (20 May 1856): 415. When T. P. Griffithes, a solicitor, quoted Dr. Johnson before the Royal Commission in 1910, the Chairman, Lord Gorell, asked if the quotation from Boswell's Life of Johnson should be considered outdated. Griffithes replied, “It is a little old, but I submit it is equally good sense today.” 1 Minutes of Evidence 151:3,463.Google Scholar

14 R. H. Graveson, “The Background of the Century,”in Graveson & Crane, Century of Family Law 5. See Stone, Road to Divorce 231–300, for an analysis of what were known as “crim. con. actions.”Google Scholar

15 Parl. Deb., Lords, 142 (26 June 1856): 1970.CrossRefGoogle Scholar

16 Parl. Deb., Commons, 147 (6 Aug. 1857): 1172 and (19 Aug. 1857): 1869.Google Scholar

17 3 Minutes of Evidence 94:35,665.Google Scholar

18 Nancy Cott has used the term “passionless” to represent “the view that women lacked sexual aggressiveness, that their sexual appetites contributed a very minor part (if any at all) to their motivations, that lustfulness was simply uncharacteristic.” Cort argues that this view was “a centrai tenet of Victorian sexual ideology.”Cott, Nancy, “Passionlessness: An Interpretation of Victorian Sexual Ideology, 1790–1850,” 4 Signs 220 (1978).CrossRefGoogle Scholar

19 Parl. Deb., Lords, 145 (9 June 1857): 1417, and Commons, 147 (7 Aug. 1857): 1274.Google Scholar

20 3 Minutes of Evidence 346:40,046.Google Scholar

21 Id. at 2:277:19,139. Parl. Deb., Commons, 147 (13 Aug. 1857): 1558.Google Scholar

22 1 Minutes of Evidence 41:617.Google Scholar

23 Parl. Deb., Commons, 147 (13 Aug. 1857): 1542.Google Scholar

24 3 Minutes of Evidence 340:39,887. What Muir did not seem to recognize was that a woman's financial dependence upon her husband may have made her sacrifices a necessity rather than a virtue.Google Scholar

25 2 Minutes of Evidence 196:17,087.Google Scholar

26 Parl. Deb., Lords, 145 (19 May 1857): 502.Google Scholar

27 Parl. Deb., Commons, 147 (13 Aug. 1857): 1542.Google Scholar

28 45 & 46 Vict., c. 75.Google Scholar

29 58 & 59 Vict., c. 39.Google Scholar

30 2 & 3 Vict., c. 54. In Feminism, Mamiage, and the Law in Victorian England 131–55 (Princeton, N.J.: Princeton University Press, 1989) (“Shanley, Feminism”), Mary Lyndon Shanley reviews reforms of the laws regarding child custody during the 19th century.Google Scholar

31 As early as the 17th century, the Court of Chancery had established a jurisdiction over children as distinct from the absolute rights of the father at common law. This equity jurisdiction probably originated in the Crown's authority as parens parriae to protect those subjects who could not take care of themselves. In the Court of Chancery the rules of equity allowed judges to circumvent the common law rights of the father; the welfare of the child was the guiding principle in custody decisions. Although the Court of Chancery could deprive a father of custody if he had demonstrated himself to be an unfit parent on the basis of his character or conduct or if he could not supprt his children, judges were reluctant to act according to the “best interests” of the child if there were a conflict between that principle and the rights of the father. P. H. Pettit, “Parental Control and Guardianship,” in Graveson & Crane, Century of Family Law 63–66 (cited in note 9), and Homer Clark, The Law of Domestic Relations in the United States 786–87 (2d ed. St. Paul, Minn.: West Publishing Co., 1988).Google Scholar

32 36 Vict., c. 12.Google Scholar

33 49 & 50 Vict., c. 27.Google Scholar

34 The 1873 act had removed the statutory bar preventing an adulterous mother from seeking custody of her children, but in 1891 solicitors argued: “The text-books lay it down as a rule that access to the children is not to be given to a woman who is divorced by reason of her adultery.”Handley v. Handley, [1891] C.A. 124 at 125. Not until the Guardianship of Minors Act of 1973 did Parliament grant mothers the same rights as fathers over their children. Lee Holcombe, Wives and Property: Reform of the Married Women's Property Law in Nineteenth-Century England 54 (Toronto: University of Toronto Press, 1983) (“Holcombe, Wives and Property”).Google Scholar

35 See Paul Robinson, The Modernization of Sex 1–3 (New York: Harper & Row, 1976).Google Scholar

36 Havelock Ellis, Studies in the Psychology of Sex, vol. 3, Analysis of the Sexual Impulse 193–94. 206, 219 (2d ed. Philadelphia: F. A. Davis Co., 1913). Sheila Jeffreys has written that, although Ellis “asserted not merely woman's capacity, but also her right to sexual pleasure,” his work should be characterized as antifeminist. Jeffreys cites three ideas of Ellis to justify her argument. He asserted “that there were innate biological differences between the sexes” and thus reinforced “the idea that there should be separate spheres for men and women.” Ellis also prescribed “that sexual relations between women and men should take the form of male dominance and female submission,” and he created “an ideology of the ‘ideal’ woman, which was represented as a form of feminism, and consisted of the glorification of motherhood.” Sheila Jeffreys, The Spinster and Her Enemies. Feminism and Sexuality, 1880–1930 at 129–30 (London: Pandora Press, 1985) (“Jeffreys, Spinster”).Google Scholar

37 Holcombe, Wives and Property 121, and Shanley, Feminism 84. For an analysis of the Contagious Diseases Acts, see Judith R. Walkowitz, Prostitution and Victorian Society: Women, Class, and the State (Cambridge: Cambridge University Press, 1980).Google Scholar

38 Josephine Butler, Social Purity: An Address 5 (London: Social Purity Alliance, 1879), quoted in Jeffreys, Spinster 8. Google Scholar

39 Elaine Showalter, Sexual Anarchy: Gender and Culture at the Fin de Siecle 3 (New York: Penguin Books, 1990).Google Scholar

40 Phillips, Putting Asunder 499 (cited in note 8). and Edward J. Bristow, Vice and Vigilance: Purity Movements in Britain since 1700 at 100, 129 (Dublin: Gill & Macmillan, 1977).Google Scholar

41 Parl. Deb., Commons, 147 (7 Aug. 1857): 1272 and Lords, 145 (19 May 1857): 503, 518.Google Scholar

42 2 Minutes of Evidence, 410:22,583.Google Scholar

43 Id. at 1:160:3,730.Google Scholar

44 Id. at 1:236:5,740 and 3:361:40,253.Google Scholar

45 Id. at 3:26:34,498. In 1913 Christabel Pankhurst expressed the fear and concern of many women in The Great Scourge and How to End It. Her famous cure for venereal disease was “Votes for Women and Chastity for Men.” Donald Read, Documents from Edwardian England, 1901–1915 at 297 (London: George G. Hanap & Co., 1973).Google Scholar

46 3 Minutes of Evidence 333:39,720.Google Scholar

47 Id. at 2:371:21,732.Google Scholar

48 Id. at 3:162:37,006.Google Scholar

49 See Olive Banks, Faces of Feminism: A Study of Feminism as a Social Movement 63 (New York: St. Martin's Press, 1981) (“Banks, Faces of Feminism”). Susan Kingsley Kent, Mary Lyndon Shanley, and Sandra Stanley Holton have agreed that feminists rarely raised the issue of sexual freedom for women. According to Shanley, Feminism 187–88 (cited in note 30), “For most Victorian feminists the main component of women's sexual liberation consisted in curbing men's ‘licentiousness’; most were silent about or hostile to contraception. They did not propose severing women's sexual activity from the possibility of pregnancy and childbirth.” In Sex and Suffrage in Britain, 1860–1914 at 145 (Princeton, N.J.: Princeton University Press, 1987), Kent has written, “For all their willingness to discuss sexual problems and sexual issues, the vast majority of even the ‘New Women’ of the 1880s and 1890s did not raise the idea of sexual pleasure for women.” Holton has stated in Feminism and Democracy: Women's Suffrage and Reform Politics in Britain, 1900–1918 at 22 (Cambridge: Cambridge University Press, 1986): “The curbing of male sexuality by the enforcement of a single repressive standard of sexual morality was the suffragists' goal.”Google Scholar

50 Olive Banks believes that feminists derived their emphasis on a single standard of morality from evangelical Christianity. She also has argued that a conservative conception of womanhood, based on a belief in the moral superiority of women, dominated feminist thought in the early 20th century. Faces of Feminism 63, 84. This perspective is evident in the debates on the double standard in the divorce laws.Google Scholar

51 Royal Commission on Divorce and Matrimonial Causes: Report 88 (London: HMSO, 1912).Google Scholar

52 Parl. Deb., Lords, 5th ser., 17 (28 July 1914): 214.Google Scholar

53 Wilson v. Wilson, 18 Law J. Rep. 17–18 (1920). The fact that Wilson had been on active duty when his wife committed adultery may have influenced the judge's decision. Sir Henry Duke, however, in enumerating his reasons for exercising discretion, did not mention that consideration.Google Scholar

54 Holland v. Holland, [1918] P. 273 at 273–76, 281.Google Scholar

55 Wilson v. Wilson at 18.Google Scholar

56 Buterworth v. Butterwonh & Englefield, Collins v. Collins & Harrison, Barratt v. Barratt & Fox, Howell v. Howell & Waker, Adam v. Adams & Ward, EUdy v. Ellworthy & Ledgard, [1920] P. 126 at 127, 142.Google Scholar

57 Parl. Deb., Commons, 5th ser., 160 (2 March 1923): 2355.Google Scholar

58 Id. at 2356.Google Scholar

59 Id. at 2366–67.Google Scholar

60 Id. at 2388.Google Scholar

61 Postwar feminists disagreed about the various issues involved in divorce reform. Through the National Union of Societies for Equal Citizenship (NUSEC), they played an influential role in the introduction of the 1923 act. Yet members of the organization could not agree to support the extension of the grounds for divorce because some feared that the change would diminish the security that women had traditionally found in marriage. It was not until 1931 that the NUSEC endorsed the extension of the grounds for divorce. Dorothy M. Stetson, A Woman's Isue: The Politics of Family Law Reform in England 108, 110, 113 (Westport, Conn.: Greenwood Press, 1982).Google Scholar

62 Roderick Phillips has responded to historians who have identified the liberalization of divorce laws with the emancipation of women by arguing that both “the reasons that legislators put forward to justify divorce law reform and … the substance of the reforms themselves [indicate that the reforms] were designed to achieve essentially conservative results.”Putting Asunder 494 (cited in note 8). The debates surrounding the removal of the double standard in the English divorce laws provide a specific example of Phillips's general point.Google Scholar

63 15 & 16 Geo. 5, c. 49. According to the 1925 Act sec. 189(1): “A husband may on a petition for divorce or for judicial separation or for damages only, claim damages from any person on the ground of adultery with the wife of the petitioner.” See Lord Birkenhead's speech in the Lords during the debate on the 1923 act for a discussion of other distinctions between men and women in the divorce laws. Parl. Deb., 54 (26 June 1923): 590–91.Google Scholar