The madhouse divorce: the effect of Victorian property, lunacy and divorce laws and their portrayal in popular culture.

• Author: Bolivar, Robin
• Position: United Kingdom - University of New Brunswick Law Journal Forum: Access to Justice

INTRODUCTION

In the nineteenth century the trinity of property, lunacy and divorce laws operated inter-connectedly and conspired with male-defined notions of insanity to provide an alternative for husbands who could not divorce their wives: a "madhouse divorce". Victorian property laws made it attractive for men to marry because everything a woman owned became her husband's property at marriage. (1) Once married, a man who acquired a fortune also acquired a wife, of whom he sometimes wished to be rid. However, the law did not allow divorce except in very specific cases, and marital discord or unhappiness did not qualify. The development of lunacy laws in the late eighteenth century offered a solution for husbands. Before the Madhouse Act (1774), (2) no laws governed the process of committing a wife to a madhouse. However, by the nineteenth century, for the first time in English history, medicine examined the mind and the law regulated the madhouse. While the purpose of the laws was to ensure that committal to a madhouse was appropriate, the effect was to legitimize the "madhouse divorce". Lunacy laws distinguished between the propertied and unpropertied, making it far easier to commit the latter. As a result, the industry of insanity emerged. The madhouse became the asylum, and its keepers were no longer matrons but medical men. Men dominated the operation of the asylum and they also defined lunacy--often as that which was female.

The effect of the laws was to protect the men who committed their wives rather than protecting wives from committal. This irony was not lost on the public. Popular literature abounded with criticism of misuse of the lunacy laws, which grew harsher as the century went on. (3) While Charlotte Bronte's Jane Eyre in 1847 provides the archetypal husband who shuffles his wife out of sight because of her insanity and resumes life as a bachelor, Charles Reade offers a direct attack on the laws and madhouse system in Hard Cash in 1863. Bronte illustrates the motive, Reade the means. Outside of fiction, the press was critical of the laws and the injustice that resulted from them. (4) One of the most publicized cases was Georgina Weldon's escape from the mad doctors who, under instruction from her husband, tried to commit her. (5) Subsequent to the passing of the Married Women's Property Act (1882), Weldon took a number of cases to the courts and to the press, demonstrating the failure of the lunacy laws. (6) Weldon's exposure of the abuse of the lunacy laws influenced both the public and the law. In the wake of public censure, these laws underwent a complete reform in 1890, creating a system that effectively ended the madhouse divorce.

Property, Divorce and Lunacy Laws in Victorian England

Under Victorian property law a man could acquire a fortune as easily as saying "I will," offering a great incentive for men to marry. The legal fiction of coverture merged husband and wife into a single married being, represented by the husband. In the words of William Blackstone,

By marriage the very being or legal existence of a woman is suspended, or at least it is incorporated or consolidated into that of the husband, under whose wing, protection and cover she performs everything, and she is therefore called in our law feme covert ... and her condition during marriage is called coverture. (7) In part, the law was based on the notion that the husband would protect his wife. Therefore, the law entrusted the husband with the care of his wife, subsuming the wife's legal existence during her marriage. A married woman could neither own property nor bring an action. As a result, a married woman was at the mercy of her husband in almost every legal regard. (8) Thus, the marriage contract was often a better bargain for the husband than his wife.

Once married, there was little possibility for escape. Nineteenth-century English society considered the family to be the bastion of morality, and the nation's moral prowess dictated that its divorce laws be harsh and inflexible. Until 1857, the ecclesiastical courts governed divorce and granted divorces with supreme infrequency. Even after the "modernization" of the laws in 1857, husbands and wives had limited options in obtaining a divorce. (9) The property laws made it attractive for a man in want of a fortune to marry well; however, the divorce laws would not release him from his vows on any but the most serious grounds.

In the ecclesiastical courts there were two possibilities for divorce. First, they granted divorce a mensa et thoro to men on the grounds of adultery, cruelty, or desertion, after which neither party was free to remarry. Second, they granted divorce a vinculo matrimonii, an absolute dissolution, on the grounds of an invalid marriage due to age, mental incompetence, sexual impotence, fraud, or by private act of Parliament. So, to obtain complete freedom, the marriage had to be either void ab initio, or the same effect achieved by a private act of Parliament. The application for a private act was lengthy, onerous and expensive. The process required the ecclesiastical courts to first grant a divorce a mensa et thoro. Then the husband had to bring a successful suit against his wife's lover for criminal conversation. (10) Finally, Parliament had to agree to grant a bill with the effect of a divorce a vinculo matrimonii. While divorce was far more accessible to men than women, even for a husband the opportunities were scant.

In 1854, Charles Dickens offered an excoriating critique of the divorce laws in Hard Times, illustrating how divorce was impossible for the lower classes and often a burden too great for the wealthy as well. (11) In this narrative, Stephen Blackpool, a virtuous factory worker, is married to a drunken, deserting wife who returns home only frequently enough to take what money he has and destroy his life. Stephen approaches his employer, Mr. Bounderby, with his plight, asking for the man's advice. After Mr. Bounderby expounds on all of the laws against Stephen, he relates the one law that would rid Stephen of his wife and leave him free to remarry:

There is such a law.... But it's not for you at all. It costs money. It costs a mint of money.... Why, you'd have to go to Doctors' Commons with a suit, and you'd have to go to the court of Common Law with a suit, and you'd have to go to the House of Lords with a suit, and you'd have to get an Act of Parliament to enable you to marry again, and it would cost you (if it was a case of very plain-sailing), I suppose from a thousand to fifteen hundred pound.... Perhaps twice the money. (12) Dickens depicts the harshness of the divorce laws by showing their effect on a noble man in a lamentable situation. While, for most Victorians, to sanction divorce was to sanction immorality, a vocal group of reformers called for a relaxation of the laws. This group included the likes of Dickens, who was notoriously trapped in an unhappy marriage, and Lady Caroline Norton, whose tyrannical husband turned her in to an advocate for reform. (13)

Three years after Dickens published Hard Times, Parliament reformed the divorce laws and created the divorce court. While the legislation, Matrimonial Causes Act (1857), moved the basis for marriage from sacrament to contract, the new court's standard for divorce was not much lower than the ecclesiastical courts had required. (14) A divorce a mensa et thoro became a judicial separation. The divorce court granted it to either husband or wife on similar grounds to those available in the ecclesiastical courts. The legislation did expand the grounds for an absolute divorce, but they remained the most egregious in nature. (15) Wilkie Collins used the continued inadequacy of the new laws as the premise for The Law and the Lady. (16) In that novel, in a moment of soon-repented valour, Eustace Macallan married his first wife. Her visit to his lodgings, alone and uninvited, without subsequent marriage would have besmirched her virtue and destroyed other marital prospects. After the marriage, Eustace's misery at the match is apparent, leading his wife to commit suicide and the courts to charge him with her murder. As neither party to the match was guilty of anything more than incompatibility, the law provided no avenue for divorce. Collins's novel illustrates the disastrous effects that the binding and irreversible ties of marriage could have and the continued inadequacy of the divorce laws.

While the morality of the nation required such laws, this morality did not necessarily correlate with individual desire. Since divorce was not something that unhappy husbands and wives could accomplish directly, it was left to their ingenuity to improvise it indirectly. The collusion of the property laws and the lunacy laws provided an avenue for the now-propertied husband to be rid of his now-unpropertied wife. The case with which a nefarious husband could commit his wife to an asylum made this indirect route an attractive alternative to a life of marital discord. While committal of a wife to an insane asylum did not end the marriage, it did remove the day-to-day encumbrance of a wife and the accompanying expense.

Following their introduction in 1774, the lunacy laws provided a legal framework for this method of improvised divorce. Prior to 1774, no laws had regulated the committal of the insane to madhouses. Medicine was still focussed on the body and had not yet dared address the complexities of the mind. Likewise, the legal system regulated only the body and had not yet applied its strictures to the mind. The consequence was that, should a husband be inclined, he could trek to the nearest madhouse, wife in tow, and commit her. Lack of medical or legal regulation meant that there was little to prohibit the committal and no record of it. The sole hope of a surreptitiously sequestered wife was that friends would discover her situation and obtain a writ of habeas corpus to set her...