Married Women’s Property and Divorce in the 19th Century

In 1882, after a series of earlier reforms, the Married Women’s Property Act passed for England, Wales and Ireland, while Scotland had a less extensive Act in 1880 and another in 1881. The Act restored to married women the right to own, sell and buy property and returned their legal identities, allowing them to sue, be sued, contract debt and be made bankrupt. In Scotland, women were still restricted by a need to ask their husband’s consent to use their property, but gained greater rights of ownership and wider recognition of their legal person. One interesting repercussion of the Acts was the increase in the divorce rate. In England before 1880, the number of divorces in a single year had only rarely risen above 300, after 1882 it only once fell below that number. Divorces continued to rise year on year to over 1000 divorces by the First World War. After women received the vote in 1918, the number of divorces rose again, tripling within two years (although this is also partly a reflection of post-war instability).

In Scotland, this picture was even more marked. In 1879, there were 55 divorces. The highest number of divorces in a single year had been 66 in 1878, the year after Scotland got its first Married Women’s Property Act. In 1880, there were 80 divorces and numbers never again fell below 65 divorces in a single year. By the end of the decade, there were usually over 100 divorces a year- almost doubling the pre-Act numbers, and within another ten the number of divorces was usually around the 200 mark. Scotland also saw a rise in post-suffrage/ post-war divorces, with 297 divorces in 1917, 485 divorces in 1918 and 829 divorces in 1919- a high that would not again be reached until the late 1930s!

The impact of the Acts does appear to have directly played a part in people’s choice to divorce as can be seen in the case of the Glasgow couple Isabella Smith and Henry Gore-Booth. In 1850, after sixteen years of marriage and nine children, Henry Gore Booth underwent bankruptcy and both he and his wife were frequently ill. During one illness, his wife’s friend Mrs King went to London to nurse him. At some point between then and 1855 when the Gore-Booths agree to a legal separation, Henry’s relationship with Mrs King develops to that of ‘Husband and wife’. Henry and Mrs King’s partnership was illegitimate, as although Henry and Isabella had separated, they never divorced. This difficulty did not seem to worry Henry, however, as he still set up home with Mrs King as if they were married and in 1860, when she died, the obituary described her as Elizabeth Gore Booth.

Isabella moved out of her marital home and back to her parents’ estate, although it seems it was not required of her. She was advised to move house by her brother to corroborate their separation as well as for her own security. During this time, Isabella wrote very little of events in her diary and in fact the only mention of her separation is the words ‘today we sent the letter to the Booths’. As a result, it is hard to know her feelings on the situation and it is obviously a delicate subject, as her brother writes rather euphemistically to her in 1855, “I am sorry hear that Mr GB has been troubling you’, without more detail. Her sister’s letter doesn’t really go into details but reassures her that it is not her fault, that God’s hand is not angry with her and they might yet reconcile.  Isabella’s writing focused on her children who were frequently ill at this time.

When her marriage fell apart, Isabella and her children went back to the family home to live with her father, and it was he and her brother who acted for her with regards the separation and divorce. In later years, her brother Archibald advised her on which schools to send her sons and inspected them for her, which was considered a male task. Her father also found her a separate house within the grounds of his Jordanhill estate to live in with her children.

Despite having a separate home and a supportive family, Isabella does not choose to divorce until 1881, the year of the Married Women’s Property Act (Scotland). Her reasons for postponing divorce were not explicitly explained, but property dispersion was amongst the issues discussed. She was counselled in 1862 by her legal adviser Harry Leader to “get a divorce so you keep your own property and do not fear for the children”- but did not do so. Perhaps, keeping her own property was not so assured as he thought or perhaps she wished to wait until her children were adults.

Isabella Gore-Booth’s case would have been relatively straight forward as her husband wished to divorce and was quite willing to admit to his adultery. It was her decision not to take her plea to the Scottish Commissary Court- in an era where it was the ‘wronged’ party that must sue for divorce. Isabella’s change of heart in 1881 suggest that it was fear of losing her property that had thus far prevented her from doing so. It was also after the passing of this Act that her brother, Archibald Smith, a lawyer, advised his father, “It is … that with any regard for her own character or for the children, she should…now apply for a divorce.”  Social opprobrium was usually a great deterrent against divorce, although late-nineteenth century society was becoming less adverse to divorcees. Archibald’s advice may appear controversial, but it seemed that it would be to her greater advantage to separate herself from the situation, rather than allow Henry to bring any more shame to her name.

The Married Women’s Property Acts not only ensured women had access to their own property, but altered how women were viewed within society. Instead, of remaining the wronged wife, women with property were increasingly expected to have and to use their resources to pick themselves up after marital separation- and to move on as independent individuals in the modern world.  

Further reading

Eleanor Gordon and Gwyneth Nair, Public Lives: Women, Family and Society in Victorian Britain, (Yale UP, 2003).

Glasgow City Archives Smiths of Jordanhill Papers (TD1 series)

England and Wales divorce Statistics- http://www.statistics.gov.uk/STATBASE/Product.asp?vlnk=14124

Scotland divorce statistics- http://www.gro-scotland.gov.uk/statistics/divorces-and-adoptions/divorces-time-series-data.html