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The Road to Polygamy

Putting Asunder: A History of Divorce in Western Society

by Roderick Phillips
Cambridge University Press, 672 pp., $39.50

1.

If the rates of divorce remain fairly steady, as they have done throughout the 1980s, a half of all marriages in America today, and over a third in England, will end in the divorce court rather than the funeral parlor. Apart perhaps from Scandinavia, these two countries have the highest divorce rates in the Western world, far above those in the Mediterranean countries, where strong Catholic religious opposition to any divorce has only recently been defeated by the legislature. Only Ireland has no divorce law at all, a proposed bill having recently been defeated in a referendum by a combination of the Roman Catholic Church and fearful Irish women. During the referendum, an opponent observed that “a woman who votes in favor of divorce is like a turkey voting in favor of Christmas.” Except in Ireland, therefore, divorce is now as much a part of our culture and our lives as death and taxes. But how and when and why did we get this way, and what have been consequences so far for human happiness, moral virtue, and social stability? These are questions inevitably raised by a reading of Roderick Phillips’s Putting Asunder.

Phillips is the author of studies of divorce in France during the 1790s and in New Zealand in the twentieth century. His new book is the first in the English language to attempt an overall view of the history of divorce in the West, from the Reformation to the present day, covering in some detail England, America, and France, and more superficially the other European countries. It is the result of a prodigious amount of research into the now voluminous secondary literature. If not exciting, witty, or venturesome, the book provides a clear, intelligent, scholarly, and dependable general account of the history of divorce in the West.

The first point that has to be stressed is that the official rate of divorce may well, and in earlier times always did, bear no relation at all to the number of marital breakdowns and spontaneous separations. And yet the conditions in which marriages cease to work are what we should principally be interested in. Divorce is merely a legal condition; marital breakdown is a social fact.

Eight hundred years ago the highly restrictive moral code of the medieval canon law made divorce virtually impossible, except for the very rich and powerful who could lobby and bribe their way to annulments from Rome. By way of contrast, a few years ago a judge in America casually granted one woman no fewer than sixteen divorces in eleven years.1 Divorce today has become an administrative not a judicial procedure, and because of the huge numbers involved it is inevitably processed with conveyor-belt speed and impersonality.

If before the twentieth century, the Christian West was basically a non-divorcing society, why were there such intense and prolonged battles when changes in the divorce laws came up for discussion? The answer suggested by Phillips’s book is that enormous moral, psychological, and social weight was attached to any tampering with the rules governing the making or breaking of marriage. Such tampering was seen on all sides as threatening a change not only in interpersonal relationships but in social structure, economic property transfers, the power of the Church, and even symbolically the security of the state. After all, did not Gibbon ascribe at least a part of the responsibility for the decline of Rome to the liberal divorce laws for the Imperial aristocracy? Did not the English associate the worst excesses of the French Revolution with the short-lived experiment in liberal divorce laws in France? Until recently there has always been a belief that the laws of divorce in some profound way both reflect and influence the moral and material health of the society, as well as deeply affecting the prospects of individual self-fulfillment and happiness.

It is therefore essential to bear in mind that before the twentieth century families tended to stay together, and that public divorce or even private separation was a rarity. As Phillips makes clear, death was in most countries the only agent for dissolving marriage. As a result, there is little evidence that variations in the strictness of divorce laws in any way influenced the degree of marital breakdown or adultery in a given society. The classic example is Scotland, which ever since the mid-sixteenth century has permitted divorce for adultery or desertion, but whose divorce rate remained almost negligible until the twentieth century. When the option of divorce for reasons of adultery was first made available in England in 1857, it too, after an initial spurt, had little or no significant effect on the incidence of divorce before World War I. In 1911 the number of divorces was still below 1000 a year, out of a population of married women of 6.6 million.

The history of divorce is thus unintelligible unless it is treated along with the history of marriage, since the bonding effect of the latter often left little room for the former. Marriages in the past were more than the individual unions of two spouses for affective or procreative purposes. They were that, and companionship, love, and lust certainly helped to bind these unions, but these were all secondary considerations. Marriages created economic partnerships, each spouse being responsible for his or her specialized functions. In any case, marriage offered the only respectable career open to most women, who faced destitution if it was terminated. Marriages were also alliances between families and kin groups, creating social and political ties of crucial importance to large numbers of persons. Finally, marriages acted as the most important vehicles for the transfer of property, far more important than purchase and sale. Small wonder that it was extremely difficult to disentangle this complex web of ties, and few even wanted to do so, however bad the marriage might be.

The first opening in the legal barrier against divorce occurred at the Reformation. From then until the early twentieth century it is by and large true to say that the only cause for divorce in the West was adultery. But the double standard always prevailed, by which adultery by a husband was generally regarded as understandable and subject to condonation by a prudent wife, while even a single act of adultery by a wife was unpardonable. In these days when the ideology of gender equality is paramount, this distinction seems barbaric, and a typical example of masculine injustice to women. In fact, however, it made good sense. In the first place, in a society in which property and title were transferred from father to children, it was considered of critical importance that the inheritors should be genetically the offspring of the legal father. But as the Roman jurist Gaius observed: “Maternity is a fact, paternity is a matter of opinion.” The fear of a wife imposing a spurious child upon the family as heir to the property and title was a very real one in the days before contraceptives and genetic coding.

Secondly, there is evidence that in Western societies, at least, men have tended to find it easier than women to separate the purely physical pleasures of sex from emotional commitment. Hence the ancient profession of prostitution and the modern proliferation of massage parlors, both exclusively designed to give pleasure to men. Partly as a result, male infidelity only rarely affected the emotional basis of the marriage.

Thirdly, men have had an equally widespread tendency to be intensely jealous of any rival for the sexual favors of their wives or women. Adultery by a wife has virtually always been regarded as a profound insult to a man’s virility. He has been liable to fight for his territory and his harem as fiercely as the male of any other species. This sense of a traumatic psychological blow to masculine identity has made a woman’s adultery a staple theme of novels and plays from Flaubert’s Madame Bovary to Harold Pinter’s Betrayal. Only since 1960 has no-fault divorce and the ideal of happiness pursued by the generations born after World War II led to extensive marital breakdown.

It is no accident that before the twentieth century the laws of divorce changed very infrequently. On those rare occasions when a change occurred, it was preceded by a shift in both the popular and the elite concepts of moral behavior and family cohesion, of the kind that took place during the Reformation. Next a quiet adjustment through judicial interpretation of the laws was made by the courts, which often bent them out of shape by the use of legal fictions. Finally, up to a century after the moral change began, there occurred a protracted political legislative battle to change the law, as occurred in England.

Here, from the late eighteenth century men and women of property had been twisting the law and committing perjury in order to obtain for themselves what was tantamount to divorce on demand. But it was not until 1857 that the first divorce law was passed by Parliament, and even then it met with bitter opposition from Gladstone and others. It only passed because Palmerston kept Parliament in session day after day into the boiling heat of a very hot August, until the bill became law. Such a battle usually ended in a compromise, which was invariably described by its supporters as a reform, and by its opponents as the road to moral and political disintegration. At the very least, when the change occurred, it brought the law a little closer to human behavior.

Once passed, the laws of divorce have acted as templates into which have been poured the passions and desires associated with marital breakdown. The legal forms of pleadings were adjusted to fit the new law, so that public litigation about, say, “adultery,” “desertion,” “mental cruelty” often bore, and bear, little relation to what was going on behind the scenes. Marital litigation has always been a theatrical display designed for a single purpose: legally to dissolve a marriage so that remarriage can take place, not to investigate and reveal the full truth of the causes of the marital breakdown.

2.

Phillips starts his story only in the late middle ages. This means that he does not attempt to explain the extraordinary doctrines of extreme asceticism adopted by the early Christian Church, which came to dominate in the West. In its deep suspicion of marital sexuality, and its ban on all divorce, the Church provided a code of behavior quite unlike that of Classical Rome, Islam, Judaism, or the Greek Orthodox Church.2 In the fourth century official ethics changed and moved away from an acceptance of marital sexuality as both the most exquisite of physical pleasures and a civic duty in order to reproduce the species. The doctrine of the Church now put virginity and sexual abstinence above reproduction, denounced the use of sex purely for pleasure as a sin, and thus set the scene for matrimonial law for the next thousand years. As a result, medieval canon law forbade divorce with remarriage, while allowing to a few the sexually frustrating solution of separation of bed and board without permission to remarry; this was granted only on grounds of adultery of extreme cruelty.

  1. 1

    Journal of Marriage and the Family, Vol. 24 (1972), p. 706.

  2. 2

    See P. Brown, The Body and Society: Men, Women, and Sexual Renunciation in Early Christianity (Columbia University Press, 1988).

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