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Friday, February 12, 2016

Why are Vital Records Vital to Genealogists? Part Nine -- Divorce, Separation and Annulment and the laws that govern legality

Unfortunately, divorces, separations and annulments may also be a part of our ancestors' lives. But as I have noted previously, they only recently became common. Before the 19th Century and the 20th Century in the United States, all of these marital options were rare and become very difficult to discover. In some countries, civil government registration as opposed to church records has a definitive beginning. For example in England, civil registration began in 1837 and before that only the churches maintained birth, marriage and death information. Genealogists researching in England should be aware of this date. Likewise, records of births, deaths and marriages only began throughout England in 1538 with an edict from King Henry VIII.

Genealogical research into situations where divorce or annulment are suspected usually involve resort to court records or town records in New England. It is also important to remember that marriage, divorce and annulment affected property rights and in a larger sense the legal position of women in any society. Divorce laws are intractably connected to women's rights to property and separate maintenance. Annulment differs from divorce in that the annulment declares that the marriage never legally existed ab initio therefore any legal implications of the marriage were returned to their state before the invalid marriage occurred.

In the United States, the dates when the civil governments of the states and counties began keeping records of births and deaths vary across the country from east to west. Some of the western states, such as Arizona, did not keep consistent birth and death information on a state-wide basis until the 1920s. On the East Coast, whether or not the records were kept depends on the individual towns and counties. Marriage records are more consistently available because of the impact marriage has on property ownership. The Research Wiki has information on the status of the availability of vital records for each state and county in the United States and most of the English Counties and parishes.

Unfortunately, ascertaining the earliest dates for records of divorces and annulments is not quite that easy. Marriage records are usually separately maintained, but divorce and annulment records are included in the general court or civil records on a very local basis. In very recent times, you can sometimes find divorce statistics, but the actual records are scattered into the records of the courts handling divorce actions and annulment actions may be even more difficult to find.

Historically, divorce was illegal except in exceptional circumstances and was only used only in cases of adultery, desertion, bigamy and in some cases, impotence. During colonial times the northern colonies, such as the Massachusetts Bay Colony set up judicial tribunals to handle the few divorce cases that were allowed but in the South, divorces were all but prohibited entirely for any reason. During colonial times, the various legislative bodies had jurisdiction over divorce matters but after independence the United States began the transition of transferring that authority over to the judiciary.

During the 1800s various states began passage of married woman property laws. The first of these was passed in Connecticut in 1809 allowing women to write wills. Similar statutes were passed in the other states in the 1850s. The New York Married Women's Property Act of 1848 was used as a model by the other states. Here is copy of the law from the New York Laws 307, Chapter 200 in 1848 as quoted by the Library of Congress "Married Women's Property Laws:"
AN ACT for the effectual protection of the property of married women. 
Passed April 7, 1848. 
The People of the State of New York, represented in Senate and Assembly do enact as follows: 
Sec. 1. The real and personal property of any female who may hereafter marry, and which she shall own at the time of marriage, and the rents issues and profits thereof shall not be subject to the disposal of her husband, nor be liable for his debts, and shall continue her sole and separate property, as if she were a single female. 
Sec. 2 The real and personal property, and the rents issues and profits thereof of any female now married shall not be subject to the disposal of her husband; but shall be her sole and separate property as if she were a single female except so far as the same may be liable for the debts of her husband heretofore contracted. 
Sec. 3. It shall be lawful for any married female to receive, by gift, grant devise or bequest, from any person other than her husband and hold to her sole and separate use, as if she were a single female, real and personal property, and the rents, issues and profits thereof, and the same shall not be subject to the disposal of her husband, nor be liable for his debts. 
Sec. 4. All contracts made between persons in contemplation of marriage shall remain in full force after such marriage takes place.
As you can see, if such a law were necessary, prior to the law's passage, women did not have many property rights and certainly had little or no leverage in a divorce proceeding. If you were ever required to read Nathan Hawthorne's The Scarlet Letter, you can begin to see the complexity of the issues involved in marital relationships in the American colonies.

Women's property rights in England were finally addressed by the Married Women's Property Act of 1882 (45 & 46 Vict. c.75). The law applied to England, Wales and Ireland (until Irish independence) but did not apply to Scotland. Prior to the passage of the Act the law in England with respect to women's rights could be described as follows quoting from Wikipedia: Married Women's Property Act 1882:
English law defined the role of the wife as a ‘feme covert’, emphasizing her subordination to her husband, and putting her under the ‘protection and influence of her husband, her baron, or lord’. Upon marriage, the husband and wife became one person under the law, as the property of the wife was surrendered to her husband, and her legal identity ceased to exist. Any personal property acquired by the wife during the marriage, unless specified that it was for her own separate use, went automatically to her husband. If a woman writer had copyright before marriage, the copyright would pass to the husband afterwards, for instance. Further, a married woman was unable to draft a will or dispose of any property without her husband’s consent.
This was the basis for the law in America. The dissolution of a marriage, whether initiated by the husband or wife, usually left the divorced females impoverished, as the law offered them no rights to marital property.

It is possible that marriages, divorces but less likely with annulments, that notices of the action may appear in the local newspapers, especially those newspapers that printed legal notices on a regular basis.

Separation is only a legal issue if it affects property rights in the course of a civil court action. Therefore any genealogical evidence of a separation where there is no formal divorce proceeding will likely only be discovered through the examination of the personal records of the family.

For information on locating court records, the Research Wiki has extensive links beginning with United States Court Records.

Here are the previous installments of this series.

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