The Decree Absolute Transcript

Caroline: The crime at the heart of a classic murder mystery tends to be a personal, even intimate one. Whereas later twentieth century whodunnits and thrillers began to explore the crimes of strangers in greater depth — stalkers, serial killers, and so forth — during the interwar years, most fictional murderers were to be found much closer to home. Within the home, in fact, in many cases. Relatives, friends, colleagues and spouses: these are the killers of the golden age.

At the heart of this domestic context, very often, is a marriage. Whether the author is setting their plot in a lavish country house or a poky suburban villa, the chances are good that there will be a married couple about the place somewhere. Said couple might even contain the book's victim, or its perpetrator, or both. And this matters because the interwar years saw a drastic change in how marriage worked in Britain. In particular, how marriages could be brought to an end.

Join me, won't you, for a thorough investigation of divorce in detective fiction.

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Welcome to Shedunnit. I'm Caroline Crampton.

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The most obvious way that divorce shows up in detective fiction is also the most straightforward: one spouse murders the other because they don't want to be in the marriage anymore and they don't want to or can't pursue the non-violent, legal route to dissolving it. Often, this happens for inheritance reasons or because they want to marry someone else. This is absolutely a plot point that we come across all the time — all kinds of writers including Agatha Christie and Dorothy L. Sayers used it liberally, although I'm not going to spoil a whole swathe of books for you by listing titles. To understand why this was a plausible motive for murder, we need to rewind from the golden age of detective fiction in the interwar period and get to know some nineteenth century British legal history. And the important question is: how would one go about getting a divorce in England or Wales before 1857?

Jen:  With great difficulty would be the answer to that one. If you were a woman, with even more difficulty.

Caroline: This is Dr Jen Aston, Associate Professor in Law at Northumbria University and an expert on the history of divorce. As she will explain, the grounds for a divorce before 1857 were narrow and the process was complicated — there were three stages to go through, leading to it being known as the "tripartite system". Scotland and Northern Ireland, it should be noted, have their own separate legal systems and thus this history is different there, although the broad direction of travel is similar.

Jen:  The grounds for a full divorce, where you might be able to remarry after the divorce process, required adultery. So a husband would first sue his wife's lover in the assize courts and if he was successful in that, then he could also be awarded damages. Ostensibly for damage to his wife, to his marriage.

Caroline: That's the first of the three parts. What happens next?

Jen:  He would then take that judgment to the ecclesiastical courts where he would say, this has happened, she has broken these sacred marriage vows and I would like to be separated. Now because the church believed in the sacrament of marriage and they were never going to say, you can dissolve that as if it never happened and make another marriage, what they would say is that the husband was entitled divorce a mensa et thoro, which basically means separation of bed and table. So essentially the husband and wife could live separately, but actually that marriage bond remained there. So as a legal agreement and as a religious sacrament, it was still in place, which meant that a marriage couldn't happen.

Caroline: So, even after securing those two legal rulings, neither party in this original marriage could get remarried to someone else. To achieve that, there was yet another process to go through.

Jen:  The husband, if he was so inclined, could then take both those judgements to parliament and he would petition for a private act of parliament and say to the men, because it was all men at this point who sat in parliament, I would like a divorce because my wife has behaved so badly that I'm entitled to a full divorce whereby I can make another marriage and actually find a wife who's suitable and worthy of being a wife and to be treated as such.

Caroline: Going through these three stages successfully was incredibly time-consuming and expensive. It might take years, or even a decade, as well as requiring the kind of social position that could rally support for a private act of parliament. As a result, pre-1857, divorce in England and Wales was pretty rare.

Jen:  There are very few divorces between 1700 when this system becomes established and 1857 when that system ends. There are around about 400 divorces in that period, of which I think roughly five are brought by women.

Caroline: The law did not treat men and women equally. Men could seek a divorce just on the grounds of adultery — that is, that they could prove their wife had had a relationship outside the marriage. Women, however, had to provide proof of adultery plus an additional aggravating offence, such as incest or bigamy.

Matters changed with the passage of the Matrimonial Causes Act of 1857. This was part of a broader suite of mid-nineteenth century legal updates to inheritance and property ownership, prompted by sudden and rapid population growth in industrial revolution Britain. The new divorce procedure was good in some ways, and very much not good in others.

Jen:  The Matrimonial Causes Act is radical in some ways in that it marks the first time that divorce becomes a civil matter rather than something that the ecclesiastical courts had real control over. It also marks the time that it moves into the civil courts rather than being part of the parliamentary process. There's now a new court established, the Court for Divorce Matrimonial Causes.  It becomes significantly cheaper because divorce court becomes a one-stop shop. You don't have these three stages. There's just one application to submit, and there might be multiple visits to the divorce court, but it's one process.

Caroline: Although the court is in London, and there wouldn't be regional sittings for some decades, it's now so much easier and cheaper to access a divorce. It's obtainable for more people, from different economic backgrounds. But in other ways, the 1857 act was not a step forward at all.

Jen:  In many ways though, it's really not a radical piece of legislation at all, and it bakes in the misogyny and the double standards that were part of the patriarchal tripartite system that existed before 1857. So for example, a husband could divorce his wife on the grounds of her adultery alone. And it could just be one occasion, there's no demand that it should be a sustained affair or anything like this, just as long as he can prove an act of adultery, then he can pursue a divorce. A wife on the other hand, has to prove adultery, but she also has to prove what becomes known as an additional matrimonial offence. Most commonly this was desertion or cruelty. It could also include things like bigamy, sodomy, bestiality, rape — but the rape wasn't of her. It couldn't be of her because it's a legal impossibility until the 1990s. So at this point she's really having to show that he's not just adulterous. Adultery is almost...I don't mean that it's rewarded or seen in a positive light, but it's certainly not seen as grounds for which a wife can break up a marriage. There has to be something else going on.

Caroline: I'm sure you can begin to see how, even with the reforms, divorce might feel impossible — especially for women. In order to get a divorce based on one of those additional aggravating offences, she would need to provide the court with substantial proof of her husband's wrongdoing. The law was also badly written. It contained no legal definition of cruelty, for instance, so it was down to each individual judge to decide whether the behaviour of a husband was sufficiently cruel that his wife should be allowed to free herself from him, or not. Until the 1920s, most divorces continued to be initiated by men.

Another consideration for a woman who wanted a divorce was the social harm it could do to her. It could have profound implications for her standing in her community.

Jen:  Traditionally, women go from being daughters to wives to widows, maybe with motherhood in the mix there somewhere too. They can be easily categorised in those states, and they exist in relation to other people in those states as well. So they're somebody's wife, they're somebody's mother, they're somebody's widow. There's a point of reference for them as they move through society. A divorced woman is really interesting, especially in the 19th century when coverture is still an active feature in women's lives.

Caroline: Coverture was a historic aspect of English common law that merged a married woman's legal identity entirely with that of her husband. Most of the time, this meant that she couldn't own property or enter into contracts on her own behalf.

Jen: When she was divorced, however, she regained her legal identity, and she also had some financial support from her ex-husband, and she was living on her own. She was head of a household. Depending on the circumstances of the divorce, she might still have their children living with her. She established herself and she had legal autonomy that married women didn't, and it was a different type of legal autonomy to widowed women because she wasn't constrained by anything to do with marriage. She was...there. And she was independent. And I think that kind of untethering from the social norms and the expectations of society put her in quite an interesting position.

Caroline: A divorced woman, to a large extent, stood outside the structures of nineteenth and twentieth century law and society. She might be feared, or shunned, as a result, which was not a situation to which many Victorian-era women aspired. It's easy to understand how seeking a divorce, for many, continued to be an act of desperation or a last resort, a move made only when their own or their children's lives were in danger, and sometimes not even possible then.

Although the law remained the same as it had been in 1857, attitudes to marriage and the ending of a marriage changed with the advent of the First World War. In 1918, the divorce rate in England and Wales spiked and it continued to rise into the 1920s. But why? What had changed, if not the law?

Jen:  On the one hand you have lots of sweethearts suddenly with a partner who as a man is going to go away to war and the worry associated with that and the romanticism of this big pivotal moment in their lives. And the answer being to get married. And also there's a practical reason for this too, because if anything happened to him, she would be entitled to a war widow's pension. So it makes sense that we see a surge in couples marrying in that way. But of those relationships, many of them probably wouldn't have got off the ground in peace time. And they're doomed from the start. Also couples who actually were quite happily married before the war, then spend four or five years apart. And before we even think about the experiences that men had on the front and in battle and how psychologically and physically changed, they might be returning home. Just that the sheer distance of time and space in that point could have tested even the strongest of relationships. So there were several reasons why we see a surge in divorce after 1918, but that's two of the main reasons.

Caroline: Women's rights campaigners had long been agitating for an update to the 1857 act and finally, after the increase in demand for divorces post First World War, they got it. The 1923 Matrimonial Causes Act abolished the double standard, so that women could now divorce men just for adultery, too. This was a big step forward, but many of the other problems with divorce law still remained, and we begin to see some of these showing up in the detective fiction of the time. In a 1927 short story titled "Murder!", Arnold Bennett has a rather unpleasant male character boast of his appalling behaviour to his wife, saying that even with the new legislation he thinks he can get away with it: "If she objects enough she can try and divorce me. I doubt if she’d succeed, but you can never be sure — with these new laws," he says.

One of the aspects of divorce law that we see portrayed often in detective fiction is the "cooling off" period built into process. You might have come across the terms "decree nisi" and "decree absolute" in novels from the 1920s and 1930s. Here's Jen again to explain what they mean.

Jen:  The decree nisi and the decree absolute are the final two stages to the divorce process. So somebody would enter their petition and the respondent, their spouse, would have the chance to answer it or not. Once the court has agreed essentially that you meet the criteria for a divorce and they're satisfied everything's above board, then they would grant the decree nisi. This is where they say here is notice, if you like, that the marriage is going to be officially dissolved. And originally the 1857 Act said that it had to be a three month period between the nisi being granted and the absolute being granted. And they changed that to make it six months quite quickly actually.

And I think that's to give what was then the Queen's proctor more time to investigate cases that were deemed not to be totally above board. But the idea of having this kind of cooling off period was really so that if anyone wanted to lodge an appeal they had time to do that before the absolute formally dissolves a marriage leaving both parties free to remarry.

Caroline: This gap between the decree nisi and the decree absolute is a major plot point in Anthony Berkeley's 1933 novel Jumping Jenny. At a party, Berkeley's amateur sleuth Roger Sheringham meets a couple who are hoping to get married, just as soon as the woman's divorce is finalised. She has received her decree nisi and now has to be very careful that nothing should occur to prevent the issuing of the decree absolute. When her future sister-in-law threatens to write to the proctor with evidence that could derail the whole divorce and thus prevent the marriage, stopping her becomes a major priority. When said sister-in-law is found dead, hanged, just a few pages later, it begins to look an awful lot like a murder has been committed to keep the divorce on track. Berkeley, who had been divorced himself and was prone to falling in love with unavailable or married women, includes a strong critique of the divorce laws in this novel.

Part of the absurdity that he highlights is that, under the existing law, the divorcing husband and wife were not supposed to discuss or cooperate on the dissolution of their marriage at all. You were actively penalised for being amicable and communicating clearly about what was happening.

Jen:  A critical part of the legislation is that, technically speaking, you shouldn't even really discuss that you want to be divorced with your spouse because there can't be any collusion at all. And this is written into the legislation that couples can't collude and they can't connive. And they also can't condone any kind of behaviour that's been granted. So it can be a really fraught period where naturally as a married couple, it's likely that you would have had a conversation, but you cannot show those conversations before the court because it would result in your case being null and void, and you wouldn't able to pursue the divorce at all.

Caroline: In Jumping Jenny, Berkeley does a good job of showing the desperation that this bizarre restriction can cause, because people quite reasonably fear that they will be trapped in an unwanted marriage forever if their "collusion" is discovered.

There's also a Parker Pyne story by Agatha Christie, “The Case of the Discontented Husband”, that deals with the complications arising from a marriage between mismatched spouses. In that case, it is the wife who decrees a six month grace period, rather than going through the courts, but the chaos that Parker Pyne causes when he introduces a new matrimonial prospect for the husband leads it to being one of the detective's rare failed cases — a comment, perhaps, on the ridiculousness of the divorce process from an author who had recently seen her own first marriage end in the divorce court.

A later novel, Death in High Heels by Christianna Brand from 1941, looks at the interval between the decree nisi and the decree absolute from the perspective of a mother. At the time when a murder happens at the shop where she works, she is exactly half way through the six month period and terrified of anything that might prevent the decree absolute from being issued or stop her from being granted full custody of her child. She ends up telling lies and impeding a murder investigation, all because of her fear that her divorce will not go through.

In response to some of the restrictions of the divorce process, by the 1920s a common workaround had developed. In cases where there was no adultery, or it wasn't desirable to air the name of a spouse's lover in the divorce petition, one could create and prove an adulterous scenario for the sake of the court.

Jen:  Eventually we see this develop into the Brighton hotel trope where somebody's found in bed with a chambermaid or the chambermaid has walked in on them with a woman who is likely paid to be keeping company with the man who's going to be named as the respondent in the case and so on. Some of the divorce files that survive have amazing private detective reports in them that describe them sitting outside this hotel in a seaside town waiting to spot somebody going in and then saying, oh and that woman was spotted with him the next day at dinner as well. And a kind of reports like that. There are photographs as well.

Caroline: Providing witness statements for divorce proceedings was a big part of business for private detectives in the late nineteenth and early twentieth centuries. If you're interested in this, you might like to look up my 2019 episode, "The Lady Detective", which covers it in more detail. This system of providing false evidence of adultery in order to expedite divorces became notorious and is referenced all over the popular culture of this time, from the 1934 Astaire-Rogers film The Gay Divorcee to the prologue of the 1937 Dorothy L. Sayers' novel Busman's Honeymoon. This last one is especially comic, with Mirabelle, Countess of Severn and Thames, writing to her friend the Dowager Duchess of Denver about how her great-nephew has bungled his trip to Brighton, because the "hired nobody" and the chambermaid were too well known to the judge, who thus knew it was a setup and refused to grant the decree nisi.

Outside of fiction, at this time in the 1930s, there was a high profile divorce case that similarly showed the absurdity of the process. In December 1936, Edward VIII abdicated as King so that he could marry Wallis Simpson, an American socialite who was in the process of securing a divorce from her second husband. Edward and Wallis were the most high-profile couple in the English-speaking world, yet you would never know it to look at her divorce papers. Her husband, you see, had followed the Brighton hotel procedure.

Jen:  It's common knowledge that Wallis Simpson has these husbands and that she's his partner and that all of this is going on. Yet her husband is found in a hotel and goes through that sort of, it's a bit of a mockery. It becomes a mockery by that stage.

Caroline: The most famous detective novelist in the world had been through this mockery herself in the late 1920s. When Agatha Christie got divorced from her first husband Archie, she reluctantly agreed to take part in a "Brighton Quickie" arrangement. Archie was keen to keep the name of his new partner, Nancy Neele, out of the courts and the press. He didn't actually go to Brighton but to the Victoria Hotel in London where, for a fee, one could hire the necessary accomplices and witnesses. Agatha then undertook to divorce him. She attended a hearing in April 1928 and perjured herself by swearing that there had been no collusion or connivance in bringing about this act of "adultery". It worked — she was granted her decree and custody of her daughter — but she didn't like it. In 1930 when she was trying to decide whether or not to marry her new beau Max Mallowan, the fact that he would have to give up his faith as a Catholic in order to marry her, a divorced woman, was a concern. In her fiction, Christie depicted divorce as a major rupture, never to be entered into lightly and, if possible, avoided. Her own experiences of the interwar divorce court stayed with her.

The social stigma of divorce persisted, even while the Brighton Quickie became commonplace. This shows up in detective fiction too, as a potential motive for murder. In The Documents in the Case from 1930 by Dorothy L. Sayers and Robert Eustace, an unhappy wife refuses her lover's suggestion that she should pursue a divorce because she can't stand the idea of having her personal life paraded through the courts. She subtly suggests that there might be a quieter and more permanent way of removing her husband from the picture. And then in Malice Aforethought from 1931, written by Anthony Berkeley and published under his Francis Iles pseudonym, we see again how this can work. This is a "howdunnit" or inverted murder mystery, with the story told from the murderer's point of view. From the very first line of the book, we know that Dr Bickleigh will try to murder his wife, but it isn't until slightly later that we learn why. The woman he has become obsessed with and wants to marry instead can't countenance the shame of marrying a divorced man, and when he tackles his wife on the subject she says that her "decency" won't allow it either. A vain, selfish man, he thinks that he has no alternative but to go rifling through the poison cupboard.

Throughout the 1930s, the ridiculing of the divorce process continued. In 1934 the writer A.P. Herbert published Holy Deadlock, a tragic satirical novel in which an honest young couple's lives are ruined because of the requirement that they fabricate an act of adultery in order to secure a divorce. The following year, Herbert was elected as an independent member of parliament and took on the reform of the divorce laws as his major priority. He managed to have a private members' bill introduced in 1936 that would expand the grounds for divorce to include things like desertion, cruelty and insanity — ending the absurdity of the Brighton quickie for good. His bill was surprisingly well-received, even by the usually conservative House of Lords. Here's Jen again to tell us why the establishment had finally woken up to the idea that making divorce easier was a good thing.

Jen:  If we think about it in quite a high level way, marriage is really what the state is built on. The idea of having a husband and a wife, a husband predominantly being the breadwinner. He's bringing in the economic wealth while the wife's supporting that work and raising the next generation of workers through their children. And they're legitimate children and everybody knows who's accountable for them, which means that the state doesn't have to pay for them. This kind of not nuclear family but that core is really what everything all the other systems are based on maintaining that intact. So part of the argument when these reforms start to gain traction in the late 19th century, so I should say that women's reformers, feminist reformers have always thought that the divorce law was inadequate.

And by the time they gain traction amongst male reformers and government in the later 19th century and early 20th century, really the focus is on what can let people engage with a kind of state-sanctioned legal process that will dissolve a marriage, but allow them and encourage them to make another one. So that they're not just these kind of free floating divorce people who have kids all over the place and nobody's paying for them, and then the state becomes liable and all this. What they want to do is to maintain marriage as the desired outcome.

Caroline: Herbert's bill eventually passed and became the Matrimonial Causes Act 1937, which gets a jocular topical reference in Love All, a play that Dorothy L. Sayers wrote that same year — at one point a group of characters discussing how best to proceed with a divorce say that "just at the moment we're a committee of the House discussing the Matrimonial Causes Bill". Sayers knew A.P. Herbert well and was married herself to a divorced man. As someone who thought deeply about her Christian faith, she seems to have been supportive of divorce reform in part because of the reasons Jen has just outlined, and partly because of the cruelty and suffering that the bad legislation caused. In her 1933 novel Clouds of Witness she had created a character, Mrs Grimethorpe, who is trapped in a marriage with an abusive man and has no way out because her possessive husband will never agree to the hotel adultery procedure. In a short story from that same year, "The Incredible Elopement", Lord Peter Wimsey observes that another abused woman he is trying to help to escape her husband would have no trouble getting a divorce in America, where the law was more liberal than it it was in England.

The passage of the 1937 law coincided with the oncoming conclusion of the golden age of detective fiction. Although divorce law still required one party to accept the blame for the end of the marriage, the removal of adultery as the sole grounds released some of the pressure. Social attitudes to marriage and divorce were evolving, too, and would do so even more quickly once the Second World War broke out. It was no longer quite so plausible that a murder, even a fictional one, would be committed simply to avoid the shame of a divorce. Detective fiction as a genre moved on to other possibilities.

This wasn't the end of the story for divorce reform, however. It took until the twenty-first century for no fault divorce, in which neither spouse has to prove wrongdoing, to become law in England and Wales. The Divorce, Dissolution and Separation Act 2020 came into force in April 2022. The only grounds for the dissolution of a marriage or civil partnership now is the irretrievable break down of the relationship. Finally, a century and more on, we are free of the tyranny of the decree absolute.

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This episode of Shedunnit was written, produced and hosted by me, Caroline Crampton.

Many thanks to my guest, Dr Jen Aston, Associate Professor in Law at Northumbria University. In addition to her other academic work, she's currently leading a project looking at approaches to the history of divorce. There's a link to that, as well as all the books we referenced, in the episode description and at shedunnitshow.com/thedecreeabsolute. I also publish transcripts of every episode including this one; find them all at shedunnitshow.com/transcripts.

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Shedunnit is edited by Euan McAleece and production assistance came from Leandra Griffith.

Thanks for listening.