If you are a regular follower of this blog, you should be aware that in the Regency Period, divorce was a VERY messy affair – VERY public – VERY expensive – and almost impossible to achieve. It, literally, took an act of Parliament!!!
“The Church of England’s resistance to divorce was so strong that the only route to a divorce was via an act of Parliament—a law voted through by both houses. Not surprisingly, few people had the means or inclination to expose their private unhappiness to the press, the public and 800-odd politicians. When a divorce law was finally enacted in 1857, and the ‘floodgates’ were opened, the number of divorces in English history stood at a mere 324.
“Only four of the 324 cases were brought by women. A husband needed to prove adultery to obtain a divorce. By contrast, a wife was required to prove adultery and some other especially aggravating circumstance to have the same grounds. Over the years, women learned that brutality, rape, desertion and financial chicanery did not count. In fact, Parliament seemed hard pressed to say what did, until Jane Addison launched her case in 1801. She won on the basis of Mr. Addison’s adultery and incest with her sister in the marital home.
“Before Mrs. Addison’s successful suit, the best a woman could hope for was a legal separation. Such arrangements were under the jurisdiction of the church courts. Litigants of either sex could sue for separation on the basis of life-threatening cruelty or adultery. Women who obtained a divortium a mensa et thoro (separation from bed and board) could live apart from their husbands, often on an allowance fixed by the court. The process was expensive and tortuous—hence there were only a few dozen cases a year—and at the end, no matter what the grounds for the separation, a wife was still required to be chaste and obedient to her husband. Unless there were truly extenuating circumstances, she could expect to lose custody of her children, too.” (The Heartbreaking History of Divorce)
Exactly what does this legal term mean? Mensa et Thoro (Latin, From table and bed, but more commonly translated as “from bed and board.”) is literally a form of “divorce” by means of a legal separation that does not, however, free the parties from the bonds of marriage. It is an obsolete form of divorce order which did not end the marriage but allowed the parties to reside separate; in effect, a legal or judicially-sanctioned separation of two married persons. In England, before the 1857 Matrimonial Causes Act, a decree in these terms from the ecclesiastical courts was equivalent to a decree of judicial separation. In Scotland, prior to the Reformation this was the only form of divorce known. It is still used in the context of judicial separation. (Collins Dictionary of Law © W.J. Stewart, 2006)
This phrase designates a “divorce,” which is really akin to a separation granted by a court whereby a couple are not legally obligated to live together, but their marriage has not been dissolved. Neither spouse has the right to remarry where there is a divorce a mensa et thoro; only parties who have been awarded a divorce a vinculo matrimonii, the more common type of divorce, can do so. (West’s Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.)
A Mensa et Thoro separation was somewhat easier to claim than was a divorce, which required Parliament’s approval. It was also less expensive than divorce. However, one must understand that a Mensa a Thoro did not permit the separated parties to remarry. One still possessed a marriage partner. It is simply a legal separation (divorce from bed and board). Neither party could remarry. The wife could not reclaim her dowry. If the couple was friendly enough to agree to a “marriage in name only,” there would be no purpose served by taking this step. The couple could just agree to live separately and make whatever financial arrangements they liked. However, if a legal heir was required, then the only solution after the heir was delivered would be a legal separation. The legitimacy of any future child born to the couple remains intact in a mensa et thoro. This kind of divorce does not affect the legitimacy of children, nor authorize a second marriage.
As an attorney, and an ardent Jane Austen fan….I GREATLY appreciate this legal insight into divorces in the Regency period. Thank you for the fact-filled, interesting article!!!!
Thank you for the kind words, Lisa. You might also enjoy my post on annulments, divorce, and criminal conversation. You can find it HERE: https://reginajeffers.wordpress.com/2016/01/07/annulments/
It wasn’t exactly a womans world was it!