'Disregarding the Matrimonial Vows': Divorce in Eighteenth and Early-Nineteenth Century Scotland
Leneman, Leah, Journal of Social History
If marriage is the most important commitment in the life of most human beings, its dissolution is therefore traumatic, even in our own time, when it occurs so frequently. Debates on the ease or difficulty with which divorces should be granted continue to rage, and we forget that divorce has been around for centuries. Lawrence Stone has revealed the fascination there can be in looking at marital breakdown in earlier periods, but England was unique amongst European countries in allowing divorce only by private act of parliament. Looking at a country within the British Isles where it was readily accessible to all members of the population provides a different perspective.
In European countries which adopted Protestantism, marriage was no longer held to be a sacrament, and divorce was countenanced on the grounds of adultery. The right to divorce had to be the same for both sexes for, in Calvin's words, "A man may hold the primacy in other things, but in bed he and his wife are equal." The logic was that the Bible enjoined death for an adulterous wife, and "in modern times [the sixteenth century] divorce was a substitute for that punishment." Scottish divorce decreets therefore made the guilty party legally dead in relation to their spouse. England, having come to its Protestantism by a somewhat different route, was the exception, and in accordance with the teachings of the Roman Catholic Church continued to hold a marriage to be indissoluble, although separation without the right to remarry was allowed, and eventually it became possible for rich men to obtain a divorce by a private act of Parliament. Its laws encompassed Wales as well, but Scotland retained a separate legal system which allowed full divorce and remarriage. This was available on equal terms to both men and women on the straightforward grounds of simple adultery or "malicious" (i.e. deliberate) desertion for more than four years.(1)
In spite of this universal right, Scottish divorce rates remained low until well into this century. Studying divorce in periods before it became generally acceptable raises important questions about the marital tie. From 1684 to 1830, when its functions were transferred to the Court of Session, Edinburgh Commissary Court - the national consistory court - kept a register of decreets, and process papers were also retained in a more systematic way. As adultery was so rarely committed in full view of others, an enormous amount of circumstantial evidence was required, and the records of this court are therefore remarkably rich and full, enabling such questions to be posed. During this century and a half Scotland was transformed from a 'backward', largely rural, country into a heavily urbanized and industrialised one, so the first question must be what impact all this had on the divorce rate.
From evidence on divorce rates in various European countries and American states, and on separation in England, Lawrence Stone concluded that "there was some deep shift of mood and morals in Protestant areas in the late eighteenth century which made legal separation and divorce much more acceptable solutions to marital disharmony than they had been earlier."(2) As we will see, this also proved true of Scotland, and the reasons for the change must be considered. England's denial of divorce to women on the grounds of simple adultery until the 1920s formed a cornerstone of Keith Thomas's essay on the double standard.(3) So we must obviously ask if the legal right enjoyed by Scottish women was circumscribed by cultural disapproval of their using it. The final, crucial question is why in a country where divorce was so readily available, and where various circumstances rendered it far more acceptable by the end of the eighteenth century than it had been hitherto, the rate of divorce remained so very low compared with the later decades of the twentieth century.
Part I of this paper provides some background on divorce in Scotland and explains the procedures followed in the court. …