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.
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.
Led by Luther, Protestants rejected the Catholic notions that celibacy is more virtuous than matrimony, and that marriage is a sacrament of the Church, and therefore indissoluble. Luther even went so far as to urge a man with a frigid wife who refused to sleep with him to “get rid of her.” Except for England, all the Protestant societies, including Scotland and New England, adopted some legal method of divorce on grounds of a matrimonial fault—primarily adultery, but often also willful desertion. Some countries treated the sexes equally before the law, others did not. But they all agreed in denouncing the canon law practice of granting separation from bed and board, on the grounds that it was a direct incitement to adulterous cohabitation and bastardy, and that it lacked a shadow of justification from the words of Christ in the Bible. If Protestants were thus more frank than Catholics in their emphasis upon the sexual aspect of marriage, and their willingness to dissolve a bad marriage, they fully shared the patriarchal attitude that a husband was the legal sovereign in his family, with the right to beat his wife (within moderation) if she was disobedient to him, and with the authority to possess and manage all her property.
One of the first steps adopted by the Puritan emigrants to New England was to make marriage a purely secular act, and to provide divorce with the right to remarry, on the grounds of adultery by a wife (not by a husband), severe husbandly cruelty, or desertion. During the seventeenth and eighteenth centuries, Massachusetts and Connecticut were the divorce centers of the Anglo-Saxon world, much as Nevada and California are today. In Catholic Europe, however, the state in the sixteenth century promulgated laws to preserve patriarchal control of all marriages of children up to their middle twenties, while the Church maintained its total ban on divorces and its policy of granting separations from bed and board for cause. But the numbers of the latter were very small indeed, and clearly bore no relation to the true level of marital disharmony or breakdown.
Phillips explains the growing pressure for some modification of the divorce laws in late eighteenth-century Europe by the development of secularization, and sees the struggle primarily as one between Church and state. This is true enough, but equally significant was the rising tide of “affective individualism”—the tendency to treat children more kindly, as persons with feelings of their own, and to base marriages on affection—which was so noticeable in middle- and upper-class circles in England, France, and America, and was given much publicity by Rousseau and the Romantics. These trends deeply affected attitudes toward love, sex, marriage, and divorce.
One aspect of this psychological upheaval, which became of political significance in the nineteenth century, was the increasingly vociferous demands by women for greater legal equality within marriage, and easier access to divorce. It was they who drew attention to the fact that married women were almost entirely deprived of legal control over their own property, an anomaly which was not rectified until the late nineteenth century. In the eyes of most women, this injustice was far more important than that of lack of access to divorce. Indeed many women in the nineteenth and early twentieth centuries were very suspicious of divorce law reform. They were fearful that it would enable their husbands to trade them in for younger wives, leaving them to end their days in loneliness and poverty. As it turned out, this prediction was not far from the truth.
Phillips rightly observes that “regarded over the long term, divorce on any significant scale must be treated as a recent phenomenon, as characteristic of little more than the past century.” So the question arises: Are we dealing with a situation in which the number of marriages that break down has been steady but the proportion that have led to legal divorces has risen? Or have the numbers of broken marriages themselves increased in the last hundred years? Phillips cautiously—and probably rightly—compromises, arguing that the answer is some of both.
I would disagree with him, however, in his argument that the rise in the number of legal divorces between 1860 and 1914 meant an increase in the number of marital breakdowns. Over a decade ago I suggested that the rise in divorce in the late nineteenth century could be interpreted as a functional substitute for death: as death rates among adults declined, marriages would have lasted longer and longer had they not been broken by the rising numbers of divorces. Phillips only grudgingly accepts this argument, but he seems unaware of some striking evidence to support it. A graph of American marriages dissolved both by divorce and by death between 1860 and 1980 shows that although the dissolution rate by death as a proportion of marriages was falling steadily after 1860, the slack was taken up by the rise in divorces. As a result, the rate of dissolutions a year per 1000 marriages remained almost exactly the same from 1860 to 1960. It was only after 1960 that the situation changed abruptly, as the number of divorces soared to wholly new heights, quite unrelated to any continued decline in the adult mortality rate, which in fact has been flattening out.3 On the other hand, the great increase in divorce rates has not overcome the even greater decline in adult mortality. In America in 1980, one could still expect to spend more years married than one could in 1800 or 1900, although admittedly fewer than in 1960.4 Fears that the family is coming apart are therefore grossly exaggerated, when divorce is set in the historical perspective of mortality. Single parent households, step parents, and abandoned children were at least as common in 1800 as they were in 1960.
Phillips has an excellent chapter on the intellectual background to the growth of divorce reform laws and divorces in the latter half of the nineteenth century, which he calls “a vital transitional period in the history of divorce in Western society.” At the end of both World War I and World War II there were brief explosions of divorces, mostly initiated by husbands. These were presumably younger men who had returned from war to be faced with hasty wartime marriages which did not work out, and older men who found that their spouses had been unfaithful or had set up new households in their long absence. After these brief spurts of postwar divorces, in each case the number subsided again, but it is noticeable that they leveled off at a plateau very much higher than that before the war. The two world wars of the twentieth century have therefore had long-term as well as short-term social and psychological consequences. They seem permanently to have raised divorce rates to quite new levels.
Between the wars all the Protestant democracies adopted piecemeal divorce reforms based on liberal principles, while the Catholic countries (and New York State thanks to the Catholic vote) mostly held the line. Fascist countries subordinated both marriage and divorce to the needs of the state for virile manpower to fight wars. Ever since the nineteenth century or earlier, the rate of divorce in America—especially in the West—has been almost double that which has prevailed anywhere else in the Western world, and it has continued to enjoy this dubious superiority all through the twentieth century. The case of divorce in America appears to derive first from the rough, freewheeling conditions of the frontier, and later from the competition between the states to boost the tourist industry by lowering residential requirements for divorce. As late as 1962, Mrs. Nelson Rockefeller had to make a trip to Nevada to dissolve her marriage.
Phillips realizes, but might have stressed more strongly than he does, that since 1960 an entirely new situation has arisen. Led by the Church of England—of all institutions—countries everywhere in the Protestant West have abandoned the ancient idea of divorce on grounds of a matrimonial fault, mainly adultery. It has been fashionable, especially in progressive religious circles, to argue, quite correctly, that adultery, cruelty, etc., are merely symptoms of marital breakdown. They have therefore turned to no-fault divorce, on the modern post-Freudian principle that people should not be blamed for behavior arising from their emotional history and makeup. Divorce is consequently regarded as free from any moral stigma. It is ironical that it was a reading of the 1966 report by the Church of England that encouraged the California legislature into the passage of its no-fault divorce law, variants of which have rapidly spread from state to state and country to country.
Since 1960 there has been a wholly unprecedented rise in divorce rates by a factor of two or even three. The scale of marital breakdowns in the West since 1960 has no historical precedent that I know of, and seems unique. There has been nothing like it for the last 2,000 years, and probably much longer. In retrospect the 1960s look more and more like a watershed in the culture of the West, of which liberal divorce laws are only a minor symptom. Divorce law reform was eagerly supported both by liberals, inspired by the ideal of individual self-fulfillment, and by feminist groups, who on grounds of natural justice demanded and obtained priority of the mother in child custody and an equal division of the marital property. As a result of the no-fault divorce laws, and the new attitudes that lay behind them, today couples split up not for an unpardonable marital offense, like adultery or physical or mental cruelty, but because of perceived temperamental incompatibility, or disappointment that married life is not what they hoped it would be.
The results of this moral and legal revolution are clear enough. On the one hand hundreds of thousands of couples are yearly freed from what they regard, often rightly, as intolerable situations. On the other hand, for dependent children, a marital breakdown is often an unmitigated disaster. One very recent study suggests that children of divorced parents often suffer long term and serious psychological consequences. Ten years after a divorce, no fewer than 40 percent of the children in the sample were doing poorly in coping with life, and the future of another 15 percent was uncertain. Only 45 percent were doing well. As for the parents, after ten years one in four of the women and one in five of the men had not yet put their lives together again.5 These are tentative conclusions that need information from more extensive research, but at least they are suggestive. Moreover the financial results of an equal division of property have proved to be highly disadvantageous to women, both in California and in England, since the potential future earning power of married women is very much less than that of men.6 Furthermore, since the marital property usually consists mainly of the house, equal partition means that it has to be sold, so that the proceeds can be divided. The sale of the family home adds to the trauma of the children, who may find themselves suddenly deprived not only of their father but also of their home, their school, their friends, and their economic comforts. No-fault divorce has been not only financially a severe blow for many women, but also a personal one, since their chances of remarrying are significantly lower than that of men. Divorce in the 1980s is thus often a liberation from an often agonizing relationship for both husband and wife. But it also often ends up as a financial bonanza for men, a financial and personal catastrophe for women, and a psychological disaster for the children.
Although today divorce is a dominant feature of our lives and those of our friends and our children, the evidence is thus ambiguous whether the post-1960 explosion of divorce throughout the Western world has done much to advance the Benthamite objective of the greatest happiness of the greatest number. There can be no doubt that under the old restrictive divorce laws needless misery was suffered by many spouses—especially women—trapped in disastrous marriages to neglectful, drunken, violent, or financially predatory husbands, marriages from which there was then no legal or practical escape. But since 1960 the pendulum has swung in the other direction, so that spouses are being traded in almost as cheaply and easily as used cars. An argument could therefore be made that the divorce laws and divorce practice in the 1950s and early 1960s had the virtue of being free enough to liberate the desperately unhappy, but restrictive enough to make both spouses think long and hard before smashing up a marriage. But this is a value judgment about consequences, and entirely lacking in sociological proof.
Even after a prodigious amount of research, the causes of this late twentieth-century revolution, affecting both marital breakdowns and legal divorces, remain ambiguous. Phillips devotes a long chapter to this question, and ends in a welter of contradictions and self-doubt. In the end he states bluntly that “the underlying explanations…are social and economic, not affective and attitudinal.” Above all he points to industrialization and urbanization, which undermined the “family economy”—the economic inter-dependence resulting from shared, family-centered employment such as a family farm—that had traditionally held married couples together.
But such arguments ignore the fact that the working poor could not afford divorces until legal aid became available after about 1920. Consequently the first stage of the revolution was restricted to the middle and upper classes. A second explanation emphasizes changes in the law, which undoubtedly occurred and some of which were very important. Above all, the granting of legal aid to the poor after 1920 and the introduction of no-fault divorce in about 1970 both had truly startling consequences. A third possible cause is profound changes in culture and morals: the shrinkage of those parts of life affected by religious belief, especially among Protestants; the evolution of liberation theology in the churches, which has spread into attitudes toward divorce as well as homosexuality and colonialism; the traumatic consequence of two world wars in permanently upsetting traditional moral values; the entry on a huge scale of married women into the work force so that at last they have achieved some economic independence; the feminist movement which persuaded male legislators and power brokers to concede to women full sexual equality and the end of the double standard; and the sexual revolution inspired, however remotely and accidentally, by Freudianism, and greatly stimulated by the invention of penicillin and the pill.
According to Phillips—and here I agree with him—the most important of all in these changes in values was rising expectations of emotional, sexual, and economic fulfillment in marriage, hopes, that were inevitably disappointed when faced with the rough reality of married life, with its critical in-laws, cranky children, disabling sickness, and the frustrating day-to-day grind of intimate cohabitation. Finally there was a major shift in attitudes toward divorce itself, which as numbers mounted eventually ceased to carry with it any stigma of shame and sense of failure. Together, these cultural factors, many of them certainly associated with economic and social changes, do much to explain the dizzy rise of divorce to a point where it is half as common as marriage; but how such factors combine to lead to divorce in some cases, not others, remains murky.
The statistical correlations of divorce with other features of society are interesting but not conclusive. For example, it is striking that two pauses in the growth of divorce, in the 1950s and again in the 1980s, coincide with periods of general conservatism in politics, culture, and morals. We know that divorce increases in correlation with teen-age marriage, poverty, childlessness, employment of the wife, unemployment of the husband, and a family history of divorce. We also know that a large majority of the people who petition for divorce—70percent in England—are now wives. If we ask people separately why they divorce, wives stress cruelty, money, alcohol, neglect, and the absence of affection and consideration; husbands stress trouble with their in-laws and sex. Whether they are telling the truth, and whether they are revealing symptoms rather than causes, is not clear.
We are thus left hanging, faced with choosing between contradictory reflections of individual spouses, vague statistical correlations of sociological probabilities, broad socioeconomic models based on urbanization and industrialization, and the influence of cultural forces like individualism, secularization, and sexual liberation.
As early as 1853, Horace Greeley complained that radical ideas about divorce were gaining ground in America. His explanation was that “this is preeminently an age of Individualism (it would hardly be polite to call it Egotism) wherein the Sovereignty of the Individual—that is the right of every man to do pretty nearly as he pleases—is already generally popular, and is visibly gaining ground daily.”7 If this was true in 1853, it is surely a cliché now in 1988. Along with the weakening of formal religion, this moral and cultural shift to untrammeled individualism seems to have been the principal cause of the escalation of divorce over the last century, and it is at least partly responsible for the unparalleled explosion since 1960. As a result we are now living, as before, in a culture of serial polygamy, but it is a culture now driven by the individual pursuit of happiness rather than by the inexorable accidents of mortality. Whether this is for the better or the worse remains unclear. But thanks to Phillips’s book we can now at last see ourselves in historical and international perspective.
March 2, 1989
Journal of Marriage and the Family, Vol. 24 (1972), p. 706. ↩
See P. Brown, The Body and Society: Men, Women, and Sexual Renunciation in Early Christianity (Columbia University Press, 1988). ↩
Population Bulletin, Vol. 38, No. 4 (1983), Fig. 2. ↩
S.C. Watkins and J.A. Menken, “Demographic Foundations of Family Change,” American Sociological Review, Vol. 52 (1987), p. 351, Fig. 4. American women could expect to spend twenty-seven years in marriage in 1800, forty-two in 1960, and thirty-five in 1980. ↩
J.S. Wallerstein, Second Chances: Men, Women and Children a Decade After Divorce (Ticknor and Fields, 1989). For an abstract of the evidence, see The New York Times Magazine, January 22, 1989, pages 19–21 and 41–44. ↩
L.J. Weitzman, The Divorce Revolution: The Unexpected Social and Economic Consequences for Women and Children in America (Free Press, 1985). ↩
N.M. Blake, The Road to Reno: A History of Divorce in the United States (Macmillan, 1962; Greenwood reprint, 1977), p. 84. ↩