Code of Hammurabi

The practice of divorce has its origins in ancient times. The earliest divorce legislation appears in the Babylonian Code of Hammurabi, the oldest set of laws in world history, which dates from approximately 1760 BCE.

Under the Code a man initiating a divorce had to return her bridal dowry to his wife, including any money, land or goods, unless she had committed adultery. Not all of the Code was so enlightened. If a woman was considered to have brought her husband into ill-repute then it was within his rights to have her drowned.

Ancient Greece & Rome

Both the ancient Greeks and the Romans also permitted the dissolution of marriages. While Athenians had to take their case to a civil magistrate the Romans took a more liberal approach. Husbands and wives could simply renounce their vows without recourse to legal involvement. However in all of these societies the bond of marriage was strong and the actual number of separations was small.

Divorce in the Middle Ages

In early medieval Europe it was church rather than civil authorities which controlled marriages through ecclesiastical courts. On marriage a woman was seen to become one with her husband with no separate rights. Divorce was rare and wedlock was seen as a holy sacrament which human beings should not tamper with.

A compromise was provided with permission sometimes granted for what would now amount to ‘legal separations’, where the marriage was not dissolved but the man and woman could live apart. The official term for this was the Latin phrase ‘divorce a mensa et thoro’ (meaning ‘separation of bed and board’.) The only other available option was an ‘annulment’ where a marriage would be declared void on exceptional grounds such as the non-consummation of the partnership.

This was not the case in all cultures however. Under Islamic law for example divorce is known as ‘talaq’ and was relatively common in the medieval Ottoman Empire (modern Turkey) although less so in the modern Middle East.

King Henry VIII & Catherine of Aragon

Perhaps the most high-profile divorce case in history took place between King Henry VIII of England and the first of his six wives, Queen Catherine of Aragon. Certainly, its implications were wide-ranging as it played out on the international stage of sixteenth century Europe. The crisis arose from a power struggle with the Pope in Rome as Henry sought to assert his independent rights of kingship.

King Henry took the dramatic step of breaking with the Pope in order to dissolve his marriage with Catherine, who could not bear him heirs. In 1533 Henry had the marriage annulled in order to marry Anne Boleyn. This step contributed to the Reformation in England, and led to a permanent break with the Roman Catholic Church.

Early Modern Divorce

Henry’s challenge to the powers of the ecclesiastical courts initiated a gradual shift so that over time marriage increasingly became a matter for the consideration of the civil courts. However these still upheld society’s view that wedlock was a permanent state which could only be ended under exceptional circumstances.

This was partly a reflection of the fact that marriage, particularly amongst the upper classes, often represented property transactions or the combining of titles, lands and families rather than the expression of love between a man and a woman. It also reflected the fact that, on marriage, women effectively became the property of their husband with few rights and no independence. It was a very unusual case indeed in which a woman initiated the ending of marriage.

Later Developments

Over time the courts extended the exceptional grounds on which a marriage could be ended. Not only did it include non-consummation or other circumstances at the outset of a marriage but also factors occurring after the marriage such as cruelty and adultery on either side.

In these cases one party would have to be found guilty of such practices while the wronged party would need to be upheld as innocent. Courts frowned on situations where both parties were ‘guilty’. They also punished any collusion between a husband and wife who may have tried to manufacture suitable grounds in order to obtain a separation desired by both. This punitive approach continued into the early twentieth century and meant that numbers of divorces remained small.

Modern Divorce

As society’s views and expectations of marriage have altered and with the change in the role of women outside of the home divorce laws have adapted. The courts have made it increasingly straightforward for two people experiencing a relationship breakdown to end their partnership with the least possible acrimony.

In the modern United States an estimated 95% of all divorces are now ‘uncontested’ because the husband and wife have been able to arrive at an amicable settlement in relation to their property and any childcare and access issues. The courts in forty-nine States accept no-fault divorces. This allows partners to cite such grounds as the irremediable breakdown of a marriage without either party having to acknowledge guilt or demonstrate a burden of proof.

Society now recognises the damage which can affect families and children; lawyers and the courts attempt to minimise this to achieve the most harmonious resolution for all parties.