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GUEST POST: Divorce and Women’s Rights in Scottish History

Dr Rebecca Mason is a historian whose work focuses on Scottish legal and social history, and women’s legal rights. She is currently writing a book on ordinary women’s navigation of legal systems and property relationships in early modern Scotland. In this blog, Dr Mason explores the complex history of divorce law in Scotland in the context of married women’s rights.

On April 6 2022, divorce law in England and Wales will significantly change following the introduction of “no-fault” divorce. This means that separating couples in England and Wales will now be able to get a divorce, civil partnership dissolution or legal separation without having to assign blame to either party for the breakdown of their relationship.

For centuries, nothing determined a Scottish woman’s identity more than her marital status. For a woman living in Scotland during the sixteenth century, her legal rights were inextricably connected to her relationship to a man: as a daughter to a father, a wife to a husband, or a widow to a former husband. Whether a woman was single, married, or widowed greatly defined her legal, social and economic opportunities during a time when men’s laws ruled women’s lives.

Prior to key legislative changes in the nineteenth century, Scottish legal rules concerning married women’s rights restricted a wife’s ability to own property, control real estate, enter into agreements, or initiate litigation without her husband’s consent. In other words, a Scottish wife - whether she was living in the thirteenth century or the seventeenth century - could not ever act in law as an independent person. But what of those married women who broke these legal restrictions and fought lawsuits against their own husbands?

While the legalities of marriage and divorce continue to evolve today, it is fascinating to uncover how women in heterosexual relationships managed the breakdown of their marriages in Scotland hundreds of years ago, including how separating and divorcing women sought to protect their rights during a time when they were afforded few.

The history of divorce law – who’s to blame?

The legal history of divorce – and marriage - in Scotland is long and complicated. Following the Reformation of 1560 – when Scotland transformed from a Catholic nation to a Protestant state - divorce was permitted as marriage was no longer considered a sacrament. After 1560, married persons could now divorce their spouses on the grounds of adultery, with a statute of 1573 allowing spouses to seek a divorce on the grounds of desertion after four years. It would not be until 1938, however, that a Scottish wife could seek a divorce on the grounds of cruelty.

In neighbouring England, a married woman could not, unlike her husband, get divorce for adultery only, but had to prove additional faults such as desertion, ‘unnatural crimes’, excessive cruelty or bigamy. It would not be until 1923 that an English wife could seek a divorce on the same grounds of simply adultery as a husband; a right afforded to Scottish women as far back as the sixteenth century.

In the early modern period, the law demanded that “blame” be attributed to either the husband or wife when the marriage irrevocably broke down. Whoever was to “blame” for the breakdown of the marriage would subsequently face severe consequences on their property and person.

Scottish divorce judgements made the guilty party legally dead in relation to their spouse. If, for example, a wife committed adultery, she lost her dowry (property or money a bride brought to her husband on their marriage), she no longer had an interest in her husband’s moveable property, and she lost her right to terce – lifelong use of one-third of her husband’s lands – along with any land she held jointly with her husband. She also lost custody of her children.

If a husband committed adultery, the wife maintained a right to all her conventional provisions as if he were dead and she retrieved all the goods gifted to her at and since the marriage. She also retained lifelong rights to her husband’s property, including a share of his moveable estate and use of his land. On rare occasions, she could retain custody of her young children, but only if she could prove that her husband was an unfit parent due to excessive violence, neglect or other behaviours unbecoming of a suitable guardian.

A wife could also seek a judicial separation from her husband. If a judicial separation was granted, the husband was ordered to separate himself from his wife and was subject to sanction if he did not adhere. In a proven case of judicial separation, the court possessed the power to make decisions regarding aliment (care provision) to be paid to the pursuer, and the custody, maintenance and education of children born of the marriage.

A judicial separation ordered one spouse to separate from the other ‘a mensa et thoro’ – this meant the parties remained legally married in law, but no longer had to cohabit as husband and wife. It would not be until the Conjugal Rights (Scotland) Amendment Act of 1861 that a wife could dispose of her property as if unmarried, after successfully being awarded a judicial separation.

Who was to “blame” for the disintegration of the marital relationship therefore mattered a great deal in the past, especially to women.

His property – or hers?

Hundreds of years ago, women typically fought with their husbands over money, sex, childcare, excessive drinking and violence before the courts – matters that continue to be debated in solicitors’ offices and courtrooms to this day. The kirk session, a lower-level church court headed by kirk elders, sought to foster harmony between warring husbands and wives before referring difficult suits to the presbytery or, finally, Edinburgh’s commissary court, which held exclusive jurisdiction over matters concerning divorce and separation. In 1560, William Rantoun attempted to initiate divorce proceedings against his wife, Elizabeth Geddes, before St Andrews’ kirk session. In response, Elizabeth countered her husband’s divorce suit, accusing him of the ‘abominable crime’ of adultery.

In her counter claim, Elizabeth alleged that her husband of two years had wrongfully withdrawn his affections and abstracted from her company, leaving her ‘utterly destitute of his solace and entertainment.’ She also claimed that her father had provided William with 200 merks in dowry upon her marriage – the equivalent of roughly £2,500 today - and that in return William had endowed her with joint rights to a house in St Andrews. Elizabeth further alleged that William had since moved a local woman named Margaret Aidname into the house, and that her husband spent frequent periods of time – sometimes weeks - in her company. In the record, the clerk notes that Elizabeth stated aloud that ‘I aught and should be separated and divorced from him and liberty to be granted to me to marry again’. She also requested the return of her dowry in full.

Frustratingly, Elizabeth Geddes disappears from the record thereafter. We don’t know if she successfully sued her husband for divorce, acquired a judicial separation instead, or if they subsequently reconciled. We also don’t know if she regained her dowry in full, or if she managed to assert her rights to her house in St Andrews. But what we do know is that many Scottish women like Elizabeth attempted to protect their reputation and rights upon the irrevocable breakdown of their marriage during the early modern period, with some even mustering the courage to challenge their husbands’ authority and rule in public.

The kirk sessions were usually the first point of contact for wives who sought to divorce their husbands. Presbytery courts, on the other hand, regularly heard challenging or puzzling suits referred by the kirk sessions. In 1687, Marie Dhonchie Roy was finally granted permission by the presbytery of Dingwall to seek a divorce from her cheating husband, Kenneth McCurchie, before Edinburgh’s commissary court. Marie’s case had been referred from Inverness’ kirk session to the presbytery of Dingwall and, finally, to Edinburgh’s commissary court; a lengthy process that involved the complication of evidence and questioning of parties and various witnesses over a period of months. In the early modern period, women were obliged to interact with various judicial authorities when seeking a final break from their spouses. For an unhappy wife like Marie, the road to divorce was a rocky one indeed.

Yet, despite the introduction of divorce laws in the late-sixteenth century, a relatively small number of women successfully divorced their husbands on the grounds of adultery or desertion in Scotland prior to the nineteenth century. The high cost of litigation meant that it was often only wealthy women who could achieve a divorce before Edinburgh’s commissary court, as has been explored in depth by the historian Leah Leneman.

Many ordinary women instead sought to highlight their husbands’ maltreatment to secure a favourable financial settlement, if not a judicial separation or divorce. In 1589, Elspeth Dundie, the wife of Duncan McGrigor, alleged before Perth’s kirk session that her husband hit her, plundered her house, and had ‘done many other injuries to her.’ Elspeth asked the kirk elders if they could reason with her husband to ‘modify her something to live on’, an arrangement that would avoid without the cost and hassle of seeking an expensive judicial separation or divorce before Edinburgh’s commissary court. Instead, the kirk elders appointed four men to visit Duncan and Elspeth at their dwelling place and attempt to bring them to an agreement to live in ‘peace and harmony’, before they would agree to refer Elspeth’s complaint to the presbytery of Perth. This is the first and only time that Elspeth sought help from the kirk session. Frustratingly, there are no surviving records for the presbytery of Perth prior to 1618, so we don’t know if Elspeth’s petition for an informal separation was ultimately successful, or if she subsequently reconciled with her husband.

Other women simply had no choice but to abandon their husbands. In Inverness in 1560, Watt Cuper promised to stay away from his wife Anne Brebner, who was now residing in the town’s ‘lugyn’ – the early modern equivalent of temporary accommodation or a women’s refuge. By this point, Watt was warned on repeated occasions by the town’s burgh court that he would be fined if he continued to ‘molest or disturb her’, with the town baillies threatening to banish him from Inverness if he continued to ignore the court order. Local legal officials clearly recognised that women could be in danger of their violent spouses, therefore allowing some to informally separate from their husbands and attempt to live peacefully elsewhere in the town.

Recognition and rights

Marriage and divorce law in Scotland has, of course, significantly changed since the sixteenth century.

Marriage is now recognised in the form of both civil and religious unions between individuals. Same-sex couples are now entitled to enter into marriage if they wish, following the introduction of the Marriage and Civil Partnership (Scotland) Act 2014. Today, there is only one ground for divorce in Scotland, the irretrievable breakdown of the marriage, which is proven in one of four ways: adultery of the other spouse; “unreasonable behaviour”; one year's separation if the other spouse consents; or two years’ separation if the other spouse does not consent. Divorce law no longer strips the “guilty” party of their assets, and parties can now apply for legal aid from the Scottish Legal Aid Board if they are unable to fund the costs themselves. Women who find themselves trapped in unhappy or abusive marriages can seek assistance and advice from feminist organisations, such as the Scottish Women’s Rights Centre or Scottish Women’s Aid. LGBTQI+ organisations, such as Broken Rainbow and Galop, also offer dedicated support and advice to lesbian, bisexual and trans women experiencing violence and intimate partner abuse within marriage.

Prior to the introduction of “no fault” divorce in England and Wales in April 2022, a spouse had to prove that the marriage had irretrievably broken down, which could be shown in one of five ways; the adultery of the other spouse; “unreasonable behaviour”; desertion by the other spouse; two years’ separation if the other spouse consents to the divorce; or five years’ separation in which case no consent is needed. In Scotland, the separation grounds were shortened from two years and five years respectively in 2006.

The introduction of “no fault” divorce in England and Wales on 6 April 2022 is the result of years of campaigning by the legal community. Legal practitioners have argued that the current fault-based system in England and Wales is unnecessarily provocative, in that couples have to appropriate blame for the breakdown of the marriage.

There has been some pushback, however, from Scottish legal experts to the introduction of a “no fault” divorce system in Scotland, particularly given the gendered implications of the change. Family law specialist Lucia Clark argues that husbands could potentially initiate divorce proceedings without citing any particular reason for the breakdown of the marriage. Given that women continue to face a motherhood penalty, gaps in work, and remain primarily responsible for the care of children following the breakdown of a relationship, the change in divorce law in England and Wales could leave women who perhaps wish to remain married left worse off financially as a result of the divorce.

Over the past two centuries, Scottish feminists and their supporters have campaigned for women's right to own property, to seek marital separation and divorce, and to obtain custody of their children before the courts. But women’s struggles for equality in Scotland is not a modern phenomenon.

Hundreds of years ago, Scottish women discovered ways to manoeuvre within and around the legal system in order to gain some form of relief from their marital problems. Just like women today, many were successful in obtaining economic support, if not a final break from their spouses.