The Church of England and Divorce in the Twentieth Century

Legalism and Grace

Ann Sumner Holmes

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781315408484
• Edition: 1
• Topic: History
• Subtopic: Social History
• Index: History

Attitudes towards divorce have changed considerably over the past two centuries. As society has moved away from a Biblical definition of marriage as an indissoluble union, to that of an individual and personal relationship, secular laws have evolved as well. Using unpublished sources and previously inaccessible private collections, Holmes explores the significant role the Church of England has played in these changes, as well as the impact this has had on ecclesiastical policies. This timely study will be relevant to ongoing debates about the meaning and nature of marriage, including the theological doctrines and ecclesiastical policies underlying current debates on same-sex marriage.

1
The Church of England and Divorce Reform, 1900–1914

Historical Background

Divorce, the legal dissolution of a marriage, was central to the creation of the Church of England. In the well-known story of Henry VIII, the King of England wished to rid himself of a wife who had failed to provide him with a male heir. He desperately wanted to marry another woman who would, he hoped, be able to bear a legitimate son. Henry’s Queen, Catherine of Aragon, had been married briefly to his brother Arthur. After Arthur’s death, Catherine had married Henry. Of six children born to them, only one daughter, Mary, survived. On the basis of the Biblical prohibition against marriage to a brother’s widow, Henry claimed that his marriage was cursed and asked the Pope for an annulment. The Pope, who could not afford to offend Catherine’s uncle, the Emperor Charles V, refused. The King then turned to Parliament, which passed a statute prohibiting appeals from English courts to Rome in ecclesiastical suits. The Archbishop of Canterbury’s court could then declare Henry’s marriage to Catherine null and void. After 1534, when the Act of Supremacy recognized the King as the head of the Church in England, the Pope no longer had legal authority there.

Despite its origins, the new Church of England was not sympathetic to divorce. The Anglican Reformation had abolished the jurisdiction of the Roman Catholic Church in matrimonial cases. When the courts of the Church of England assumed that jurisdiction, they continued to enforce the canonical view that marriage was indissoluble. While Continental Reformers in the sixteenth century generally agreed that divorce could be allowed in cases of adultery and malicious desertion, Anglican Church courts refused to grant divorce a vinculo, one that severed the marriage bond and gave each party the right to marry another person. These courts granted only decrees of nullity and divorces a mensa et thoro (from bed and board), which were similar to judicial separations and did not enable the parties to remarry. Canons passed by Convocation in 1603–4 stipulated that parties so separated must each provide a bond of £100 not to remarry during the lifetime of the other spouse. ¹ By 1603, the official position of the Church of England had been clarified: Divorce with the right of remarriage would not be granted in English church courts.

Since ecclesiastical courts continued to maintain plenary jurisdiction in matrimonial cases, it was almost impossible to end a marriage and remarry legally in England. Wealthy spouses who were unhappy in their marriages gradually devised a procedure to circumvent the restrictions of the system. Those who desired a divorce could petition Parliament for a Private Act to end a marriage. The process of obtaining such an Act was complicated and expensive. According to Standing Orders passed in 1798, the House of Lords passed the Acts as judicial proceedings. In order to obtain what became known as a Parliamentary divorce, a party had to secure a divorce a mensa et thoro from the ecclesiastical courts and to prosecute successfully an action of criminal conversation, which was a husband’s suit for damages against a person accused of committing adultery with the husband’s wife. Parliamentary divorces were expensive. The cost of ending a marriage by this procedure was estimated at between £700 and £800 in 1853. ² Although only the wealthy could hope to obtain such a divorce, over 300 Private Acts were passed before 1857. ³

Parliamentary divorces complicated the issue of divorce for the Church of England. The rejection of divorce a vinculo after the Reformation was not based upon a consensus regarding the indissolubility of marriage. The Anglican clergy disagreed on the issue. Some believed that marriage was absolutely indissoluble, while others held that divorce a vinculo could be granted on the ground of adultery. Innocent parties in such cases could be allowed to remarry. This position found expression in the ecclesiastical recognition of Parliamentary divorces. The bishops in the House of Lords rarely raised objections to the Private Acts that ended marriages. Further evidence that the Church of England accepted Parliamentary divorces is found in parish registers that indicate that some individuals were remarried in church after their marriages had been dissolved by an Act of Parliament. ⁴ Officially, then, the Church of England would not recognize divorces a vinculo, but bishops accepted Parliamentary divorces, and some clergy remarried individuals whose marriages had been ended by a Parliamentary Act. Since the parties to a divorce a mensa et thoro had posted a bond to an ecclesiastical court that they would not remarry while the other spouse was living, bishops and clergy found themselves in a difficult position indeed. ⁵

When the Lord Chancellor introduced a Divorce Bill in Parliament in May 1856, the bishops in the House of Lords were forced to take a stand on the principle of the indissolubility of marriage. The Matthaean Exception enabled the Archbishop of Canterbury, John Bird Sumner, to support the Divorce Bill. During the debates in the House of Lords, Archbishop Sumner said that he subscribed to the view that marriage was indissoluble ‘saving for the cause of unfaithfulness’. Since the 1857 Bill recognized only adultery as a ground for divorce, Sumner could accept the proposed legislation. Although the passage in Matthew mentioned only a husband’s divorcing his wife, Sumner argued that ‘by parity of reasoning, it would be lawful for a woman to put away her husband’. ⁶ The 1857 Act did not entirely reflect that ‘parity of reasoning’ in that, while a wife’s adultery was a sufficient ground for divorce, a woman could divorce her husband only if his adultery had been aggravated by another matrimonial offence.

The Bishop of London, A. C. Tait, who later became Archbishop of Canterbury, was the strongest clerical supporter of the 1857 Bill in the Lords. He reminded the House that the clergy had confirmed recognition of Parliamentary divorces by marrying the parties so divorced to new partners. Tait felt that the Bill merely constituted recognition of existing practices and that the proposed Divorce Court was preferable to the ‘haphazard legislation’ that had previously governed the dissolution of marriages. ⁷ Their acceptance of the Divorce Bill in 1857 indicated that the Archbishop of Canterbury and other bishops did not believe that marriage was absolutely indissoluble.

Once the principle of indissolubility had been breached, the Church confronted the troublesome question of the remarriage of divorced persons. Archbishop Sumner based his opposition to remarriage on a Scriptural text when he argued in the House of Lords, ‘Whosoever shall marry her that is put away committeth adultery’. ⁸ Bishops might recognize the State’s dissolution of the legal bond, but some believed that a spiritual tie remained. Accordingly, there could be no remarriage as long as one of the spouses was alive. The 1857 Act did offer some relief to the clergy by providing that no clergyman would be compelled to solemnize the marriage of a guilty party. If a member of the clergy refused to marry a divorced person, however, he was obligated to allow another clergyman to perform the ceremony in his church. ⁹ Such an arrangement could only aggravate disagreement within the Church regarding the remarriage of divorced persons.

Increased attention to Biblical criticism contributed to the controversy over divorce within the Church of England because theologians continued to look to the Bible for guidance in defining Christian marriage. Charles Gore was an influential theologian and bishop who played a significant role in the debate over divorce reform. In 1896 he addressed the question of Scriptural references to divorce in The Sermon on the Mount. According to Gore, ‘Our Lord proclaimed, as a prominent law of His new Kingdom, the indissolubility of marriage. And for us as Christians it is perfectly plain that not all the parliaments or kings on earth can alter the law of our Lord’. Gore denounced any remarriage after divorce, regardless of whether the parties were innocent or guilty of a matrimonial offence. He stated unequivocally, ‘Beyond all question, for the Church … it is absolutely out of the question to regard those as married who, having been divorced, have been married again … during the lifetime of their former partner’. ¹⁰

Although he maintained an extreme position on the indissolubility of marriage and the impossibility of Christian remarriage after divorce, Gore did accept the Matthaean Exception. Stating that ‘it is a law of interpretation that a command with a specific qualification is more precise than a general command without any specific qualification’, Gore acknowledged that the words of Jesus as recorded in Matthew ‘would seem to sanction, or, more strictly, not to prohibit, the re-marriage of an innocent man who has put away his wife for adultery’. ¹¹ Yet, within fifteen years after publishing The Sermon on the Mount, Gore had abandoned his adherence to the Matthaean Exception. New Testament criticism influenced his decision. Biblical scholars, especially in Germany, came to recognize the priority of the Gospel of Mark to that of Matthew. Since the verses concerning divorce in Mark contained no exception to the indissolubility of marriage, theologians began to doubt that the verse in Matthew represented the original text. ¹² Biblical criticism thus reinforced the Marcan prohibition against divorce. In The Question of Divorce, published in 1911, Gore stated that he had decided that the words constituting the Matthaean Exception were ‘probably interpolated glosses which really misinterpret the original utterances’. ¹³ By bringing into question the authenticity of the one possibility of divorce attributed to Jesus, Biblical criticism ultimately strengthened the case for indissolubility.

While Gore was certain about the indissolubility of marriage, other theologians and clergymen were not. The Church of England could not settle the debate by establishing an official position regarding divorce and remarriage, mainly because the organization of the Church did not provide the machinery necessary to issue an authoritative statement. The Archbishop of Canterbury was not a Pope who could issue encyclicals. Representative ecclesiastical assemblies did exist, but those bodies did not seek to establish Church policy regarding social questions. The Convocations of Canterbury and York, which had emerged during the Reformation, were silenced by the King early in the eighteenth century and revived only in the middle of the nineteenth century. They rarely discussed social policy. Church Congresses, which met annually after 1861, did debate social issues in relation to theological and moral questions, but these assemblies were unofficial. The first Lambeth Conference, an international gathering of Anglican bishops, met in 1867. Meeting approximately every ten years, the bishops discussed theological and social issues. Their resolutions, although influential, were only advisory; the Lambeth Conferences could not establish official doctrines for the Church of England. ¹⁴ As Biblical criticism influenced Anglican theologians to reaffirm the principle of the indissolubility of marriage, the institutional Church could not respond by establishing an official position on the issue.

Amidst doctrinal uncertainty, the Church confronted a growing demand for divorce reform that was strengthened by significant social and legal changes. The legal emancipation of women was one such change. Historically, in English common law, the marital relationship had resembled a guardianship more than a partnership. The husband, as guardian, was responsible for his wife’s protection and maintenance; the wife, as ward or subordinate, owed her husband obedience and submission. During the nineteenth century, women began to attain a legal identity apart from their husbands. Married women gained the right to own property and no longer served as mere conduits for the property of men. Marriage came to resemble more clearly a contract between equal partners rather than a guardianship that governed the transfer of property. The possibility that either partner could petition to terminate the contract began to appear more reasonable.

Reformers wh...