A History of American Divorce

In America you'll often hear it said that "in the old days people didn't get divorced, they worked things out." That's not exactly true, but it sounds good and it makes the old folks feel better to make an unfavorable comparison against the younger generation.

The truth is that 100 years ago divorce was just as popular as it is now, only people had to jump through hoops to obtain one. Before that people still split up, they just didn't bother with the formality of a divorce. They simply left and nobody ever heard from them again. Instead of divorce, which was messy and prohibitively expensive, they chose abandonment. Sometimes they pretended it had never happened if there were no kids, and married again without having divorced, or they'd fuck off somewhere far away and start their lives over again. A fair amount of migration had to do with leaving past mistakes behind, and immigrants to the US often had a wife or a husband back in the old country they were trying to put behind them. Marriage was not so uncomplicated back then. Now that we have DNA testing we're finding out that the old folks were keeping a lot of secrets.

Augustus

Let's start with history and Roman traditions because they were what later medieval traditions were based on and many of our traditions now. Roman law was a bit messy at the end of the republic. People got married and divorced as often as they wanted, sometimes for political advantage and sometimes just because they'd gotten tired of each other or found somebody else. When Augustus came to power he was disgusted with all of this swapping and changing and instituted some laws restricting it. He decreed that families should ideally have three sons, and that celibates and widows who refused to marry could not inherit or attend public games. Then he passed laws that made it permissible for fathers to kill sexually active daughters and husbands to kill the men their wives committed adultery with. This is where we get our deep moral outrage at the idea of adultery from. He also passed laws forbidding marriages across social classes because he considered it a form of concubinage. (He didn't like Claudius' wife, the circus performer). Later on they fine-tuned these laws to include homosexuality in the list of forbidden sexual activity. On a somewhat related note, the reason brides are carried over the threshold on their wedding day is to commemorate the rape of the Sabine women, one of the founding myths of Rome.

The rape of the Sabine Women by Giambologna. Photo by Thermos

Roman law was also very patriarchal and businesslike when it came to marriage. Marriage was negotiated between fathers, who could dispose of their children as they wished. Consent didn't come into it. You were getting married and that was that, because your father said so. This is where Christianity gets it from. The Catholic church has preserved many Roman traditions in their religious doctrines and later Protestant forms of Christianity got rid of a lot of Catholic tradition but not in the area of marriage, with the famous exception of divorce. Catholicism wouldn't hear of it. Protestantism allowed for it, albeit grudgingly. It still took a lot of doing to justify it in the Protestant community until just recently.

Going Medieval

Marriage for nobility and marriage for peasants were two different things, mostly because of the cost involved. A wedding cost a lot of money for the average person and if it didn't work out, getting out of it cost more than they could afford to take lightly. Back then if you got married in church you were stuck with it unless one of you died. Fortunately or unfortunately, mortality rates were high enough that there was a fair chance of that happening, along with wars and plagues and childbirth. There were a lot of widows and widowers, both the real thing and some that were questionable but there often wasn't any good way to check. 

Things were a bit looser in the beginning due to the shortage of priests in some areas. That and people couldn't afford it and so everybody just kind of looked the other way. It's how we got "common law" marriages. It was a way of legitimizing cohabitation by saying that if it lasted long enough people had rights and the partnership was as legally binding as marriage in a church. Community recognition took the place of church sanction. As long as everybody saw them as married, they were married. There was a lot of argument over what constituted a marriage because this system could be messy. In 1215 the Fourth Lateran Council forbade "clandestine" marriages. By about 1545 the Council of Trent decreed that it wasn't officially a marriage unless there was a priest. In 1753 England abolished common law marriages and required a Church of England minister to preside. And for all that they passed laws forbidding it, cohabitation continued at the same pace it always had. This all dovetails neatly into the historical context in which America was formed.

18th and 19th Century

In America we had the Puritans. They informed a lot of our early ideas about marriage. They believed that women were chattel and that we were made to have babies. Beyond that a lot of people in the early colonies didn't bother getting married officially because they couldn't. They were bonded labor or they were enslaved. They came up with an alternative arrangement, which is to say they shacked up together as people have been doing since the beginning of time. 

Later in the 19th century the laws tightened as "civilization" spread across the continent. Now women were back to being property and a man could sue for "alienation of affection" if his wife ran away with another man. For men divorce wasn't exactly easy, but for women it was damned near impossible. For a woman to obtain a divorce she had to prove that he was beating her or that he was impotent or that the marriage had never been consummated. If she tried to leave and anybody helped her, the law basically saw it as theft of property. Since there were still places to run away to and start over, a lot of people did that instead. They essentially had to fake their own death to get out of it. 

Divorce Mills

Then we come to the end of the 19th and beginning of the 20th century. Divorce had become more widespread on a localized basis. There were states where people could get a quick divorce and a tourism industry to support it because you had to stay in town anywhere from 3 days to 6 weeks to be a resident and qualify for the divorce.

But throughout this time we had abandonment or "desertion". If there were kids and there wasn't much chance their husband would come back, women would claim to be widows. The problem was a common enough one that after the US Civil War the pensions bureau sometimes had to investigate. There wasn't any fast way of communicating in those days so it was fairly common after a time to believe someone was dead and move on. Widowhood was respectable. A deserted wife, on the other hand, not so much. So they called themselves widows, if for nothing else then for the sake of the kids. It also allowed them to get a pension if the deserting husband happened to be a veteran. There were a great many veterans in those days.

Laws Concerning Deserted Wives and Children

The problem was so rampant that they had to figure out what to do legally in the event that someone just left the marriage and never came back. And remember that there was still an orphanage system that was overloaded with the children who couldn't be taken care of. Life was just as messy back then as it is now. If anything it was even messier. The orphanages were filled with kids who couldn't be supported or the products of an out-of-wedlock pregnancy, etc. Often someone leaving was what broke up the family. They got to run away and start over. Everyone else had to start over too, but without the benefit of knowing it was coming. Usually when the old folks talk about a past without divorce or dysfunction, they're looking at that history through rose-colored glasses. People still fucked around and cohabited and cheated and got divorced. Sometimes they didn't bother with the divorce. A lot of the adoptions at the time were to cover up an unpalatable family secret. Sometimes families would simply shoehorn in the illegitimate grandchildren and say they were the grandparents' children. There were all kinds of shenanigans going on and don't let anyone tell you any different. I'm pretty sure that in a lot of cases people thought they were taking these family secrets with them to their graves. Alas for them, DNA testing has dug the secrets back up again. 

It makes me wonder if we shouldn't just be honest about this stuff and stop bullshitting ourselves about how our families didn't have any scandal. Besides, the secrets are usually the most interesting thing about any family. They are what make our forebears more human because they were fallible. They had just as much difficulty with life as we do now. We'd relate to them a lot better if we knew the truth and the family story might suddenly fall into place and make sense. And  how can we avoid making the same mistakes if we can't learn from theirs, if we don't even know about them? If you think what they did in place of divorce was pretty awful, wait until I write about what they did before abortion. The past was not a better place. Not by a long shot.