Annulments, Divorces, Criminal Conversation: Debunking Historical Myths for Writers


Crim. Con. Actions and Trials and Other Proceedings Relating ... www.lawbookexchange. com

Crim. Con. Actions and Trials and Other Proceedings Relating …

First, permit me to say that in the Regency period, divorces were few. They were expensive. The Church of England opposed divorce as vehemently as did the Roman Catholic church. The Church of England only permitted a “legal separation,” which was termed a “divorce,” a fact that blows the mind of the modern reader. To claim a divorce (the right to marry another), the man first had to seek the “legal separation” on the ground of adultery on the part of his wife. He also had to sue the wife’s lover for “criminal conversation” (alienation of affection) in a different court. The “lover” would be found guilty of “illegal intercourse,” and the court would award the husband damages. The next step would be to petition Parliament to end his marriage. Testimony would be taken regarding the circumstances. This testimony would be published in the newspapers, which meant a quiet end to a marriage was not possible. At length, the bill/petition would be agreed upon, and the couple were free to marry others. 

CRIMINAL CONVERSATION -- [Trials for Adultery: or, the History of Divorces. London: S. Bladon, 1780.] | Books & Manuscripts Auction | Books & Manuscripts, printed books | Christie's CRIMINAL CONVERSATION -- [Trials for Adultery: or, the History of Divorces. London: S. Bladon, 1780.]

CRIMINAL CONVERSATION — [Trials for Adultery: or, the History of Divorces. London: S. Bladon, 1780.] | Books & Manuscripts Auction | Books & Manuscripts, printed books | Christie’s
CRIMINAL CONVERSATION — [Trials for Adultery: or, the History of Divorces. London: S. Bladon, 1780.]

Less than a handful of women earned successful divorces during the period. Those who achieved a divorce did so my claiming the husband committed adultery with the wife’s sister. In Scotland, however, both husbands and wives could sue for a divorce. Two conditions existed for such a divorce: The couple had to reside in Scotland for a minimum of six weeks, and the adultery had to be committed in Scotland proper. Henry William Paget, 1st Marquess of Anglesey (Lord Paget) originally married Lady Caroline Elizabeth Villiers (by whom he fathered 8 children), but in 1809, he eloped to Scotland with Lady Charlotte Cadogan Wellesley, the wife of Lord Henry Wellesley. Paget’s wife divorced him in late 1810. Afterwards, he married Lady Charlotte, with whom he sired 10 children. (See my post on Scandalous Marriage)

Generally annulments were hard to obtain, and, more than likely, involved either the court system or the House of Lords, if one was a peer. The exception would be a void marriage. For example, a minor who married by special license without the guardian’s permission or a marriage through an elopement to Scotland that was not consummated would not require an annulment, but rather be declared “void.” Even so, the courts could potentially become involved, especially if one required “legal proof” of the marriage’s end. [I used a variation of this situation in freeing Lydia Bennet from Mr. Wickham in my Pride and Prejudice vagary, A Dance with Mr. Darcy.]



A common plot in Regency based novels is a temporary marriage between the hero and heroine, with the assumption of an annulment based on non-consummation of the marriage after six months to a year. The issue is that not consummating the marriage was not grounds for an annulment in this historical period. Consummation could strengthen a claim of marriage in Scotland and could throw doubt in a claim of being forced into marriage, but non consummation was not grounds to annul a marriage. The church always assumed that the couple would get around to it sooner or later if able. 

Now impotence and real frigidity were grounds, as was a physical incapacity due to some deformity of the parts, for an annulment. An impenetrable hymen was also grounds though that could be fixed by a surgeon. However, few men would submit to such an examination, one designed to prove they could not consummate the marriage. If a person were insane at the time of the marriage that could earn the spouse an annulment. Also, an annulment would be granted if there was proof of a living spouse or proof of a blood relationship to the spouse (father, mother, or sibling of the spouse) or a marriage connection such as was addressed in my post on voidable marriages (in laws, etc.) Collins Hemingway in “Brotherly Love,” tells us, “Therefore, the marriage of Jane’s brother Charles to Harriet Palmer after the death of his first wife was “voidable” because Harriet was Fanny’s sister. As explained in Martha Bailey’s article in The Marriage Law of Jane Austen’s World (Persuasions, Winter 2015), this sisterhood created a prohibition by ‘affinity’ (marriage) as strong as one by blood. The logic was: Because Fanny and Harriet were related by blood, and because husband and wife became one flesh upon consummation, then Charles would also be related to Harriet by blood. This thinking applied equally for a woman who married the brother of her dead husband.

“‘Voidable’ in Charles’ case did not necessarily mean ‘voided.’ Someone—most likely a relative seeking to grab an inheritance—would have to sue to have the marriage voided and any children declared illegitimate. Charles never had enough money for anyone to bother trying to disinherit his four children by Harriet.”

Also, in the Regency period an annulment based on fraud was customarily found in the question of parental permission.

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Permit me to stray a bit from the Regency period, but to address “annulment” and “fraud” across the board. “The history of the law involving annulments based on fraud is instructive. Even going quite far back in…history, annulment laws… have generally included “fraud” as one of the available grounds. But not every proven case of deception results in a decree of annulment. Courts have often refused to nullify marriages for fraud if the innocent party was willfully blind to the truth or too easily fooled by statements made during courtship.

“Courts also require that the fraud induce the marriage: The duped spouse had to show that he or she genuinely relied on the misrepresentation in deciding to go through with the marriage. An appellate court in Missouri denied an annulment in Blair v. Blair in 2004, even though the wife fraudulently misrepresented to her husband, before he agreed to marry her, that he was the father of her child. The court concluded that he had other reasons for marrying her and thus did not rely on the misrepresentation in making his decision.

“Even when a solid case of fraud is proven, courts might decide that it is outweighed by countervailing factors. A long marriage is harder to annul than a short one; a consummated marriage is harder to annul than an unconsummated one; and a marriage that has produced children was harder to annul than one with an empty nest.

“Perhaps the most important limitation built in to the traditional approach to fraud-based annulments is the requirement that the misrepresentation relate to an essential aspect of marriage. Courts did not, for the most part, apply traditional contract principles when defining fraud in the marriage context. (Those principles would allow rescission of a contract for fraud that is material — i.e., an intentional misstatement but for which the defrauded party would have refused to enter into the agreement.) But “fraud” in the annulment context was generally construed more strictly, to include only those misrepresentations that went to the heart of marriage – and not just the particular marriage in question, but any marriage.” (FindLawLying about circumstances was not fraud.  

Annulments were not granted simply for someone claiming he/she was forced into the marriage. At first force was considered only as more than a reasonable man could withstand. Over the period of time the laws acknowledged that women were weaker and less force was necessary. The court did not take into consideration such things as a threats. There was no “shotgun weddings.” Being drunk at the wedding was not a reason for an annulment, as long as one knew one what one was doing.

bannsInsanity, an accepted reason for an annulment, had to be present previous to the wedding. Simplemindedness came under that category as well.  The age at which a person could consent to a marriage was 12, but there were instances of children married at 7. However, when the girl reached age 12 she could get out of it. The boy do the same at age 14. Marriages could be annulled if the spouse was a previous in law or if one was impotent. Invalid marriages were those by minors by license without proper permission or was bigamous. Also not conducted  in proper form.

“Examples in which annulments were granted by the Anglican Church included being under age, having committed fraud, using force, and lunacy.” (Nyanglish) Even so, the fraud, force, or lunacy had to have occurred during the wedding ceremony (or before, if it pertained to the permission granted to a minor), not after the couple were lawfully wed.  Even wealthy peers were stuck with a spouse if problems arose after the ceremony. For example, both the 11th Duke of Norfolk and the 4th Earl of Sandwich were stuck in  unfortunate marriages when their wives went insane. In the Duke of Norfolk’s case, his wife was locked up before giving him an heir, so that the dukedom eventually passed to his cousin.

English law did not require consummation. Scottish law used it as proof in clandestine marriages, but only if the other forms were not followed. The Consistory court of the Church of England handled annulments. This was located in London. The Courts within Doctors Commons were very much associated in the public mind with the making and unmaking of marriage from the 17th Centuries.

Gradually, the London Consistory Court assumed a virtual monopoly in matrimonial suits and became the most important matrimonial court for the whole of the country. It became the court of first instance for most matrimonial cases

Most people who had void marriage but who appeared as married for sometime or who had a public wedding went through the court system to have the marriage declared officially void.

From a basic litigant perspective, it probably does not matter if the petitioner is a peer or not, but one had to possess money to complete the process. It was expensive. It required an investigation, Canon lawyers, etc. Annulments did not come cheap if the cases were complicated.

What of marriage at sea? As of 1894, according to the Encyclopedia Britannica, Captains of British ships DID NOT have the right to marry people at sea. People have always been able to marry at sea on an English ship if an Anglican clergyman was aboard. After civil marriages and certificates were introduced, one of the officers of the ship, who might be a captain, could be appointed a marriage officer with the authority to conduct a civil marriage ceremony. Passengers and crew on the high seas in a ship under another flag could marry according to the rules of that country’s flag.

Nor could a marriage be annulled after one of the pair passed. [This was the variation I mentioned above as part of the plot for A Dance with Mr. Darcy.] The only grounds for annulment or declaring a marriage void, even after a person has died, is when the marriage was never valid in the first place. This  usually comes up after the death of the man when heirs presumptive want to declare the supposed son illegitimate and unable to inherit. If the ground on which they  planned to claim an annulment was valid, they were not ever legally married.


About reginajeffers

Regina Jeffers is the award-winning author of Austenesque, Regency and contemporary novels.
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13 Responses to Annulments, Divorces, Criminal Conversation: Debunking Historical Myths for Writers

  1. And here I thought it was bad enough in the 20th/21st century’s

  2. Cheryl Bolen says:

    Excellent post. Thanks.

  3. So fascinating – terrific post!

  4. Jennifer Redlarczyk says:

    I remember this post and went back and looked when Brenda started posting her story Proof of Love on the forum. At one point the forced marriage scenario proved too much for Darcy and he was seeking to have it annuled since Lizzy was underage and never received her father’s permission. Thanks for bringing us back here for another look. Jen

    • In truth, Jennifer, I am always going back to consult these minor points while I writing. I have a JAFF piece playing in my head for later this year and financial concerns are my point of contention in the story. Trying to get it right.

      • Jennifer Redlarczyk says:

        Sometimes I would really love to go back into history. Not to mention, I have never been to the UK and would also like to see the places I write about, well in a Regency setting. At least the internet is a great resource for pictures on that end. Love all the research you do.

  5. Glynis says:

    Married at 7!!!!!!! Good heavens, thank goodness that is no longer valid (in this country at least)
    Really, the laws in those days seem to very open to misrepresentation but then if you think about it you could say the same for some of today’s laws I suppose.
    Thanks for sharing this info Regina (and the cartoon! 🙂 )

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