The Long Good-Bye

In which it is argued that a look at the history of divorce
may make you feel better about our own scandalous ways.

In July of 1996, in London, Judge Gerald Angel considered the courtroom full of reporters, and then listened while the court clerk read out the names of 30 applicants for divorce, including "His Royal Highness the Prince of Wales versus Her Royal Highness the Princess of Wales." He didn't even blink. He had previously disconnected Prince Charles' sister Anne, brother Andrew, and longtime mistress Camilla Parker-Bowles; royals were nothing new to His Honor. The process took only three minutes and set the couple back $125. The grounds offered were separation and the "irretrievable" breakdown of the marriage. Though both parties had confessed on television to other loves, adultery, once the backbone of British divorce law, wasn't mentioned. The public took it in stride. Nobody suggested that respectable people would stop inviting the ex-couple to parties, or that when Charles was king, he wouldn't be allowed in the Royal Enclosure at Ascot, once off limits to the divorced. Nobody suggested that, like his great uncle Edward 60 years earlier, be pack up his shame and leave the country forever.

In the spring of 1936, Great Uncle Edward had only recently become Edward VIII when rumors circulated that he and a certain Mrs. Simpson were seeing each other. When she divorced Mr. Simpson, the citizenry was alarmed. Urchins in the street chorused, "Hark, the herald angels sing, Mrs. Simpson's pinched our king!" The prime minister called on him and explained that it simply would not do to marry what was then called a "divorcee." The public confidently supposed he'd see his duty to his country and hand this American strumpet her hat. Instead he went on the radio and said, while the world sniffled sentimentally, that he couldn't be king "without the help and support of the woman I love." So Wallis Simpson bagged husband number three and, as the Duke and Duchess of Windsor, they withered away together far from the eye of Edward's disappointed ex-subjects and royal relations. His niece, Queen Elizabeth II, share the family respectability. Yet today the British first family, whose main function is to set a good example, is an ongoing feast for supermarket tabloids and gossipy Websites. Conservative moralists believe that the U.S. divorce rate, holding steady at around 50 percent, means the end of the world as we know it, or knew it. They think that back in the golden days, before the late 20th century, people were more virtuous, chaste and dutiful, less self-indulgent, or at least more stoical than we are today. Some states have even instituted optional marriage contracts that forswear divorce except for things like abandonment, abuse or adultery. They hope to revive a past when people got married and stayed there, smiling' through, taking the rough with the smooth, till death them did part. Maybe. Maybe not. Poke around in the past and it turns out that divorce in one form or another is roughly the same age as marriage. In 1700 B.C. in famously shameless Babylon, under the Code of Hamurabi a woman could get a divorce if her husband "degraded" her, and she got to keep her dowry, too, along with her personal property and the kids, and he had to pay child support. In most times and places, though, divorce was strictly a man's option. Before Moses came along to straighten out the chosen people, a man could dispose of his helpmate merely by inviting a couple of friends over to witness while he told her, "You are no longer my wife." Then she collected no more of her possessions than she could carry and left. (Whence, they say, the custom of women wearing jewelry: valuable, portable, ready to go at short notice.) Her ex was now free to whoop it up with other women, but when he woke up with a sink full of dirty wineglasses he often remarried her. This must have been common, because the Book of Deuteronomy dealt with it specifically Chapter 24 says that if a husband finds "some uncleanness in her," he must give his wife a written bill of divorcement before throwing her out. Both could marry again as often as they pleased, but a man now couldn't remarry any of his former wives, because they were "defiled" and that was "abomination."

As manly monotheism spread over the world, mainstream societies came to believe that while a man needed a variety of women, formally or informally, for personal or dynastic reasons, for a woman one man per lifetime was quite sufficient. Besides, most of the time the wife was her husband's property and could no more divorce him than his cow could, or his favorite chair. Fringe societies were more flexible. In some a woman could even inherit and control her own property, land, and livestock, giving her some clout and the prospect of supporting herself afterward, always a key element when contemplating divorce. Before Islam, a Bedouin woman could have more than one husband at a time; if she tired of one she simply turned her tent around with the doorway facing away from him. Among some Pueblo Indians a dissatisfied wife set her man's moccasins out on the doorstep, meaning "Begone!" In highly organized ancient Rome, marriage was a family affair. An ambitious man might marry and divorce half a dozen times, forging ever more useful family ties. Purely political considerations might force him to put away a wife he loved and take on a shrew. More familiar reasons also applied; Cicero, for example, divorced the mother of his children to marry his rich teenage ward. There were two forms of Roman marriage. Since a woman had to belong to some man, she was either married with manu, (full power over her was transferred from father to husband), or without manu, which meant that she still belonged to daddy, kept her right to inherit from him and could be repossessed by him and thus divorced. By the time of Augustus, the glory days of empire, a woman could even secure a divorce under marriage with manu if her husband was a convicted criminal or a prisoner of war, or had walked out on her. In theory her husband could always divorce her. But it was wise to have a reason, committing adultery, getting drunk, brewing poisons, making copies of the household keys, and to discuss the divorce in family council. (He could sell the children, too, if he needed money, though in the fourth century Constantine made it a crime for a father to kill them, at least without cause.) When the empire crumbled, the laws and customs of most of Europe crumbled with it, and got stirred in with those brought by the Germanic tribes, or "barbarians," who were suddenly everywhere. The barbarians believed it was none of the bride's business whom she married. Her male relatives took care of that, checking the prospect's bank balance first instead of her family providing a dowry, the groom paid them a bride-price. Bride-price and dowry always seesawed according to the shortage or surplus of women. Human nature being frail, where the family has to pay to get rid of her, a baby girl is usually unwelcome and sometimes doesn't survive. Where she's a salable commodity, she eats better. In a bride-price world, a man who coughs up cash or cows for his wife is less eager to divorce her and start saving for another. Although men who could afford it had several wives or concubines, the barbarians were strict about female adultery. According to Tacitus, the husband "cuts off her hair, strips her naked, and in the presence of her kinsmen turns her out of his house and flogs her all through the village." So dishonored, she could never return. Of course, her husband also had the right under the law to kill her and her lover as well. Or he could simply demand compensation. A man's adultery had never been of much interest, at least not to men, and if he wanted he could legitimize the children thereof; William the conqueror's mother wasn't his father's wife and he inherited Normandy, anyway. But until quite recently any wife suspected of making extramarital whoopee was in serious trouble, since nobody wanted to leave the farm, or the kingdom, to another man's child. No doubt death seemed a sensible precaution, lest she already be carrying the alien seed. Husbands sometimes found suspicion handy. Servants could be bribed or tortured to testify to a wife's adultery. Not that testimony was always necessary, in the early Middle Ages a man might simply accuse and kill her in a single gesture. Christianity moved into the leadership vacuum left by the Fall of Rome. Suddenly monogamy was supposed to apply to men as well as women. "And I say unto you, whosoever shall put away his wife, except it be for fornication, and shall marry another, committeth adultery, and whoso marrieth her which is put away doth commit adultery." Furthermore, "What therefore God hath joined together, let not man put asunder." It was a radical new concept, but marriage and divorce remained family, not religious, matters for years. As the barbarian customs overpowered the Roman, women lost the right to divorce that they'd enjoyed under Augustus. In the sixth and seventh centuries upper-class men could have all the women they could afford (Dagobert I, King of the Franks, married three in a single ceremony), and if that didn't satisfy them, they could divorce them all with a wave of the hand. The handwriting was on the wall, though, and by the eighth century one wife at a time was more usual, and often a priest was called in to bless the union. Church councils made divorce harder. At the same time, inexplicably, they made annulment easier. They broadened the reach of illegal incest from cousins out to any descendants of one's 128 great-great-great-great-great-grandfather. This wasn't much use to the common man, who barely knew who his great-grandfathers were, but it was a boon to the aristocracy, who could afford creative genealogists. The rule stood until 1215 and created plenty of middle down the road, as when Louis VII and Eleanor of Aquitaine, married 15 years and sick of each other, discovered to their horror and amazement a common ancestor previously obscured in the mists of antiquity. An archbishop friend annulled them, and Eleanor married Henry II of England and took ownership of part of Aquitaine across the Channel with her, helping to bring about the Hundred Years War. Where the marriage was legal, though, the Church was flexing its muscle, and the ninth century introduced the first important male on record who had trouble unloading his wife. Charlemagne's great-grandson Lothair II, king of Lotharingia (Now Lorraine), was married to Theutberga, who was childless. Lothair wanted to marry his old girlfriend Waldrada, because they'd had kids together. He filed for divorce, claiming that before their marriage Theutberga had been unchaste with her brother Hiebert. The church was skeptical, especially since Lothair had give her the Morgengabe, or morning-after gift, meaning she's been a virgin on her wedding night. Lothair was no gentleman. He alleged that her brother's doubly unnatural attentions had left her a virgin, and worse, she had resorted to witchcraft to conceive a child by him anyway, then changed her mind and aborted it. Theutberga insisted on a trial by ordeal, and hired the customary stand-in to jump into boiling water for her. He hopped out unboiled, thus proving her innocence. Disappointed, Lothair clapped her into the dungeon to make her confess. She did, to the kings' personal chaplain, or so the chaplain said. The church granted Lothair an annulment and he moved in with Waldrada. Then, heeding the advice of Hincmar, the archbishop of Reims, the church changed its mind. During the process Hincmar hammered out a clarification that would stand for a thousand years. Marriage, he declared, was both a religious and a civil contract, and divorce required both religious and civil consent. The archbishop believed in permanent, faithful marriages, because he felt this provided a life-style so inherently boring it gave a man leisure to contemplate his soul's salvation. New wives and concubines were far too distracting. Lothair got another divorce with the help of another set of bishops and married Waldrada anyway, but Pope Nicholas I canceled the divorce, warning Lothair that even if he killed Theutberga he still couldn't marry Waldrada, because they'd committed adultery. The whole mess lasted eight years. One by one the church shot down the king's perfectly acceptable grounds for divorce: barrenness, incest, unnatural sex, adultery, witchcraft, abortion, and his previous commitment to Waldrada. In a last-ditch stand he said Theutberga wanted to enter a convent, always a clincher divorce-wise. Perhaps to his surprise, she did. But so did Waldrada. Possibly the same convent. She must have been fed up. Lothair died without legal heirs and his uncles moved in and divided up the country. Hincmar held the case up as warning to all men: marriage is forever. Across the Channel, Englishmen continued to enjoy their age-old freedoms. Even women had a few. A woman who left her husband could take half the family goods and chattels. If she was caught with a lover, at his own expense the lover had to find her husband a new wife.

This lax state of affairs was doomed. By the 11th century, unfaithful wives got their noses and ears cut off and all their possessions confiscated. That was when they still had possessions. Presently church and state decided that everything a woman owned belonged to her husband and sons and she couldn't inherit from them or anyone else, either, since even dresses and earrings could descend only in the male line. By the 14th century women in England had all but vanished, legally speaking. Their deaths were no longer recorded and their names were even erased from genealogies. Under the new morality, the God-fearing, law-abiding middle classes were stuck with each other. The rich and the poor had more leeway. For the poor, there were prostitutes and various informal, semipermanent arrangements, and back before Social Security numbers started dogging us, a husband could simply disappear and marry again elsewhere. In 18th-century England, a man who couldn't afford to vanish could dispose of his wife by selling her to another man. This folk custom was popular from medieval times until well into the 19th century, Thomas Hardy used it in The Mayor of Casterbridge. A 1772 source explains that the husband "puts a halter about her neck and thereby leads her to the next market place, and there puts her up to auction to be sold to the best bidder, as if she were a brood mare or a milch-cow." Since she is now someone else's, she obviously isn't his, so he goes home and marries again. (This was probably less appalling than it sounds. Historians figure it was often by prearrangement, with buyer, seller and merchandise all in agreement, providing a swift and amicable closure.) Women had fewer alternatives, although a man's impotence was always fair grounds for annulment. To prove impotence in certain jurisdictions, "seven honest women" were appointed to labor diligently over the poor embarrassed fellow, noting his reaction. No reaction, no marriage, with both the parties free to roll the dice again. Among the rich, a man could simply move in with his mistress. If his wife had already produced an heir and he had an extra castle or a dungeon in the basement, be could lock her up. Or he could try for an annulment, but that was getting tougher. Henry VIII tried to annul his marriage to Catherine of Aragon, who'd provided only one measly girl-child, on the grounds that she's briefly been married to his late brother, but the pope had pressing political cause to refuse him. Vexed, Henry broke with Rome, set up the Church of England, and briskly divorced himself. After that, divorce was by act of Parliament only, and cost a fortune. Across the Atlantic, however, marital rules were left to the civil code of each colony. In 1667 Connecticut passed our first divorce law, offering it in cases of adultery, fraudulent contract, three years' neglectful desertion, or seven years' total disappearance. Afterward the innocent party might remarry. But up until the American Revolution, divorce was legal only in New England, considered a shockingly immoral place because most divorces, then as now, were filed by women. The conservative South disapproved of divorces entirely, though a gentleman might desert several wives in succession, or pack an unsatisfactory wife off to Europe and see that she stayed there. Matters loosened a bit after the Revolution. Revolutions tend to shake up customs, if only briefly. For a short time after the French Revolution women enjoyed a giddy period of civil freedoms, a 1792 law provided for divorce by mutual consent. But by 1804 the Code Napoleon had once again returned to man godlike powers over his wife. He could divorce her and keep the kids, the house, the money, and the furniture. If she was unfaithful she got two years in prison, if he was, it was just his life-style. America continued to work things out state by state. Foreign visitors dropped in and were shocked or impressed. In the 1830's Harriet Martineau wrote, "In Massachusetts divorces are obtainable with peculiar ease." She thought this actually cut down on them and made marriages happier, since people no longer felt trapped. In 1849 one Mr. Brown claimed, "There are more divorces in one year in the state of Ohio than there are in ten in the United Kingdom." Though to respectable ears this sounded like Sodom and Gomorrah, in most of the United States before 1850 a married woman was legally in the same boast as slaves, lunatics, idiots, and small children. Her husband owned all she possessed or ever would possess and any money she might earn, which wasn't much; she couldn't sign a binding contract or write a will. Beyond the East Coast, tradition weighed more lightly. In the Indiana Territory, women could divorce for bigamy, impotence, and adultery. By the time Indiana became a state in 1816, additional grounds had been added, and 1838 a wife might shuck a husband just because he'd been drunk for two years. Indiana became the Reno of the 19th century, to the horror of conservatives and the relief of women whose husbands never came home from the gold rush. England, meanwhile, was still in the 14th century and proud of it. Sir William Blackstone, the fountain of jurisprudence, had put it in a nutshell: "Husband and wife are one, and that one is the husband." Why the lovely, literary, well-connected Caroline Sheridan married the brutal, greedy, lazy Hon. George Norton in the first place remains a mystery. Shortly after the ceremony be took to throwing heavy objects at her, kicking her, and demanding that she write more and more books and give him the money. In 1835 he beat her so hard she miscarried their fourth child. Then he sent the other children away to his cousin's and set private detectives on her, hoping to get rich the following year by suing her friend Lord Melbourne, then prime minister, for "criminal conversation" with his wife. The jury simply laughed at his case, but Norton threw her out of the house, anyway, and refused to let her see the kids. Caroline picked up her only legal weapon. She wrote passionate pamphlets on English law for women, and later a letter to Queen Victoria begging for changes in the law. She wanted nothing radical, just to give mothers the right to visit their c hildren, at least until they were 7 years old, and abandoned wives some control over their earnings. Victoria, besotted with her Albert, was devoted to the status quo of family life, and nothing really radical resulted, though Caroline Norton's writings did help produce the Infant-Custody bill of 1839 and a later law protecting married women's property. Between 1670 and 1857 in England, 325 divorces were granted, 321 of them to men. But after 1857, thanks to Caroline Norton's persistent pen, a woman whose husband had abandoned her got to keep any future money she could earn. British social custom demanded that one party be innocent and want a divorce and the other guilty but, mysteriously, not want a divorce. If both parties were sleeping with someone else, both were guilty so they had to stay married forever. If both wanted a divorce, that was collusion, so they had to stay married forever. A royal proctor was assigned to snoop around checking on such matters. It was not until 1923 that English law permitted a wife to divorce her husband for a single infidelity, even if he hardly beat her at all. In the United States, whether you could get a divorce and when you could remarry still depended on where you lived, or pretended to live. In 1931, in a shrewd business move, Nevada changed its rules. Still offering seven easy grounds for absolute divorce, it shortened its residency requirement to only six weeks (Smithsonian, June 1996). "Mental cruelty" and "incompatibility" entered the language, and, for the first time, being no longer in love became grounds for divorce.

The notion that, ideally, married couples should be fond of each other had been cropping up off and on for centuries; even the church recommended "martial affection." Romantic love had been fueled by the ballads of the troubadours and the novels popular in the late 18th and 19th centuries, and Hollywood helped it along in the 20th. Love, long considered a frivolous toy unconnected to the serious business of wedlock, got entangled in the legal bed sheets. Expectations of wedded bliss soared to impossible heights, and when the glow wore off, as it does, people felt cheated. When a third party inspired a fresh glow, divorce and remarriage were considered less shabby than continuing to meet in motels. State after state relaxed the rules. After the rebellions of the 1960s all personal constraints seemed tyrannical. No-fault divorces replaced the old annulment, meaning that for some reason the marriage was never a marriage. America leads the world in annulments; in 1994, Americans won 54.463 out of the 72,744 granted by the Catholic Church worldwide. Not long ago the woman on alimony was the equivalent of the "welfare queen" in the popular mind, as in Divorce American Style, a 1967 Van Johnson, Jason Robards, and Jean Simmons film about a man trying to free himself from penury by marrying off his ex. If this was ever true, its days are over. A 1981 California study showed that after a divorce, a man's standard of living shot up by 43 percent, while a woman's plunged by 73 percent. Middle-class divorced women may be living on canned beans, but for the ex-wives of the rich the old bride-price is reborn as a postdated check, breezily called a "prenup." Ivana Trump, ex-wife of entrepreneur Donald, ended up with $14 million and a mansion. His next, Marla, didn't fare as well, but got a cool million, plus child support and alimony. And just last December, in a high-stakes divorce case that many viewed as a landmark test of women's rights, a judge awarded the wife of top General Electric executive Gary Wendt half of their cash, stocks, and other hard assets, plus a part of his stock options and future pension benefits. Back in London, in the good old 17th century, Samuel Pepys, and in the good old 18th, James Boswell, two respectable married, men fond enough of their wives, spent much of their free time kissing, groping and seducing hundred of women, actresses, countesses, chambermaids. Both wives knew. Both men considered it just their "nature." Few men kept as detailed accounts as Pepys and Boswell but that doesn't mean they were unique, or even peculiar. Today's American might honestly envy them all those spare hours Pepys and Boswell could scarcely go out for lunch without grabbing the waitress, nowadays who has time even for lunch, let alone the waitress? Can Mom or Dad, rushing from work to pick up the kids at day-care and on the Cub Scouts, stop for a romantic assignation? Contrary to popular perception, we may be living in an era of marital fidelity unseen since the dawn of time. Perhaps the divorce rate doesn't mean what it seems to mean. Was it really so character-building to spend one's whole life with a brute or a shrew? The Trumps aside, is it really more shallow and cynical to divorce and remarry than to keep a string of concubines, or to close your eyes when your husband carries on with housemaids? Perhaps the divorce rate measures a sentimental hopefulness, a wistful pursuit of legalized happy ever-after that somehow, against all odds, we continue to believe in. Unrealistic, maybe, but rather sweet. Besides, despite divorce being possible for under a hundred dollars and swiftly available in many locales, half of all our married folk stay together, for richer, for poorer, til death them do part. Perhaps things have never been better.

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