How times have changed: divorce 1855 style

Family Law|October 14th 2015

And now, as they say, for something completely different…

From time to time the excellent Bailii website increases its database of cases by adding historic law reports. Amongst those published recently was a fascinating report of an 1855 divorce: Captain Wyndham’s Divorce Bill. The report demonstrates how divorce procedures have (thankfully) changed in this country over the last 160 years.

Before I begin to look at it I must confess that I do not follow all of the convoluted procedural intricacies and archaic language in the report, so bear with me.

The case concerns a gallant Captain in the British army, defending the Empire upon which the sun never set (OK – he may or may not have been gallant – I made that bit up). Our story begins with him being posted to India with his lady wife. At first, all is peace and harmony, with the Captain and Mrs. Wyndham living “very happily together in the marriage state”.

Sadly the marital bliss was rudely interrupted by our gallant Captain’s regiment being ordered to China, presumably to partake in that great act of imperial philanthropy, the First Opium War. It was when he returned to India in January 1845 that he learned for the first time the calamity which had befallen him: that his wife had eloped with another Indian officer, the obviously not-so-gallant Captain Gore. The Captain’s counsel takes up the story:

“Immediately upon receiving this intelligence, Captain Wyndham put himself in communication with his solicitors at Madras, Messrs. Dale and Boyson, and desired them to take the necessary steps to enable him to get rid of his wife. He was told that it would be a somewhat expensive and tedious process, that he must first bring an action against the adulterer, and that he must next get a sentence of divorce à mensâ et thoro from the Ecclesiastical Court.”

Two points to note here: firstly the wonderfully disrespectful phrase “get rid of his wife”, and secondly the absurdly complex procedure to obtain a divorce, including making a claim for damages against Captain Gore and obtaining a sentence of divorce à mensâ et thoro from the Ecclesiastical Court (which I mentioned here previously in this post). But that would not be the end of it: last but not least our gallant Captain would then have to apply to the Imperial Parliament for a Bill of Divorce, which is where this report comes in.

But let’s not get ahead of ourselves. Our gallant Captain duly sued the wrongdoer Gore (who couldn’t afford the damages and therefore ended up in a debtor’s prison) and, in 1847, obtained a sentence of divorce à mensâ et thoro from the Ecclesiastical Court. However, at that time the cost of obtaining a Bill of Divorce was far beyond Captain Wyndham’s means. Accordingly, he didn’t present his petition for leave to bring in a Bill to obtain the divorce until 1853.

And so finally to the House of Lords, where it has taken two years for our gallant Captain’s divorce bill to reach its climax (I will make no comment as to whether the wheels of justice move more quickly nowadays). There, our Captain’s counsel demonstrated that:

“There is proof of the marriage, there is proof that the wife was served with notice of the proceedings, and there is proof also of gross, shameless, and scandalous adultery. Indeed, a part of the evidence shows that she not only committed adultery with Captain Gore, but that she has lived with him down to the present time and has had several children by him.”

Clearly, Captain Gore was a bounder of the highest order. The Lord Chancellor accepted the evidence:

“On the 21st June it was proved orally, at the bar of the House, that Captain and Mrs. Wyndham had lived very happily together in the marriage state; the circumstances of apparent delay in the proceedings were also got over; and the House being thus satisfied that the Petitioner’s conduct had been such as clearly to entitle him to the remedy he prayed and had been eleven long years endeavouring to obtain,— the Bill on the motion of the Lord Chancellor (Lord Brougham concurring) was read a second time; and having been subsequently passed by the Commons and returned to the Lords, it received ultimately, before the close of the Session, The Royal Assent.”

And so once again our gallant Captain was a free man, no longer shackled in matrimony to such a loose and wanton woman.

For my part, it seems quite absurd that after a man’s wife runs off with another man and has children by him, the man should have to go through such a rigmarole to “get rid” of his wife. Perhaps our present system isn’t so bad after all…

The full report of the case can be found here.

Image of British soldiers during the First Opium War courtesy of Wikipedia

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  1. Andrew says:

    Those were the days . . .
    A few points you may have missed:
    First, this remained the only procedure for divorce in Ireland until Partition and in Northern Ireland until legislation in, I think, 1939: I don’t know whether Stormont ever passed a Divorce Bill (another reader might) but it certainly could; as could the Parliament at Dublin but it decided early in its career that it would not and from 1937 until recently there was a constitutional bar on it.
    Second, it was considered “bad form” to chase the co-respondent for the damages and it rarely happened: the costs were another matter. The power to order a male co-respondent to pay damages was only abolished, an I err not, by the Divorce Reform Act 1969; I don’t think it ever applied to a “woman named” but if anybody knows otherwise, do tell.
    And third, in the course of getting the ecclesiastical divorce a mensa et thoro, what we now call judicial separation, the husband had to swear an affidavit – in the Church court – that he had no intention of presenting a Bill for divorce a vinculo to Parliament. And husbands swore it was so and the ecclesiastical judges pretended to believe them.
    But then, this is England, where they know how to do sexual hypocrisy. This after all is the country where the overseers of the poor would not pay the fees for the reading of the banns and the marriage service for paupers – unless and until the woman concerned was pregnant!

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