In 1857 Parliament finally succumbed to public and political pressure and passed a bill creating a domestic relations court: the Court for Divorce and Matrimonial Causes. This new court for the first time in common-law history, combined the following jurisdictions: the ecclesiastical court's jurisdiction over marital validity and separation; the Chancery court's jurisdiction over child custody and equitable estates; the common-law court's jurisdiction over property; and Parliament's jurisdiction over divorce and marital settlements. Wives were given the legal right to seek a divorce or judicial separation in a court of law, receive custody of the children of the marriage, and were allowed an order granting them independent property rights. Divorce could now be granted in a single civil court and the costs would be substantially less than a Parliamentary divorce. Such action gave wives almost the same rights as husbands before the new judge.
This article combines empirical data from the first decade of the 1858 divorce court with a theoretical critique of the reform of family law all in the context of the historical reform movement. It explores the different kinds of arguments that existed for reform of the law of divorce, child custody, and married women's property. These nineteenth-century critiques framed the reform debate of the 1850s and established the parameters within which civil divorce would occur. The article turns to empirical data from the records of the court's first nine years to explore the extent to which the legal reform answered these stated needs of progressive reformers or frustrated the desires of female petitioners. The data reveal some limited improvement as well as great continuity in women's subordination within the family. With the evidence of the court's performance, the article then challenges the historical claims that the shift from coverture to family law benefited women. In discussing the liberalization narrative that posits family law as good for women, the article examines the reform debate and the reform itself as establishing a narrative of law's innocence in the subordination of women. Professor Wright concludes by suggesting possible implications of the narrative of law's innocence in contemporary family law and the lives of men and women today.
Danaya C. Wright, "Well-Behaved Women Don't Make History": Rethinking English Family, Law, and History, 19 Wis. Women's L.J. 211 (2004), available at http://scholarship.law.ufl.edu/facultypub/128