From Wives for Sale to Wikivorce : Self-Help Family Law from the 16th century to the 21st.
07 February 2013
Read the first of a series of articles by Cartridges' Family Law Partner Bridget Garrood, as published in St Leonards Neighbourhood News [Jan/Feb 2013 No 185]
When the common married people of the parish of St Leonard’s agreed to part, in centuries past, but were unable to afford to petition for a written deed of separation, they may well have been tempted by the following “common law divorce” remedy:
“Among the common people, a method is sometimes practised of dissolving a marriage, no less singular than compendious. When a husband and wife find themselves heartily tired of each other, and agree to part; if the man has a mind to authenticate the intended separation by making it a matter of public notoriety, thinking, with Petruchio, that his wife is his goods and chattels, he puts a halter about her neck, and thereby leads her to the next market place, and there puts her up to auction to be sold to the best bidder, as though she was a brood-mare or a milch- cow.”
This description was given in 1777, within the The Laws Respecting Women published by abolitionist Joseph Johnson. He commissioned deliberately affordable texts, understandable to literate non-lawyers. This weighty tome may have been an early “Self-Help” guide, for which the 21st Century equivalents are numerous.
Communication between quarrelling couples can easily spiral out of hand. This much is readily understood across cultures, centuries and continents. The wife-auction from Hardy’s 1886 novel, The Mayor of Casterbridge, illustrates vividly the disastrous consequences which can follow when things simply “go too far”. This astonishing scene may well have had a latent influence upon my own fascination with the history of family law and dispute resolution, which has deepened during an exhilarating 20 years in Family Law. This commenced in Exeter as an Articled Clerk in 1992, and led me to chair for several years the Devon branch of the pioneering Solicitors Family Law Association which advocates a child-focussed respectful approach (now Resolution Devon). Most satisfyingly however I trained in 2005 as one of the first Collaborative Family Lawyers in Devon, enabling me to practice firmly “no-court” divorce, as well as more traditionally.
Certainly this wife-selling scene, from which the dialogue below is extracted, horrified my teenage sense of injustice in the 1970’s, as an O level student of Hardy:
“Will anybody buy her?” said the man.
“I wish somebody would,” said she firmly. “Her present owner is not at all to her liking!”
“Nor you to mine,” said he. “So we are agreed about that. Gentlemen, you hear? It’s an agreement to part. She shall take the girl if she wants to, and go her ways. I’ll take my tools, and go my ways… Now then, stand up, Susan, and show yourself.”
A scholarly study, published in my fresher year at Exeter University in 1981, searched ballads, newspapers and other printed records of church and civil courts to assemble over four hundred cases of actual wife-sales, mainly between 1785 and 1845. [As a resident of St Leonard’s I would dearly would love to find out whether any of these early “Self-Help Divorces” may have taken place in our own parish].
The origins of the practice of wife-selling are unclear but Hardy’s characters believed it a common Gypsy event. What is apparent is that the common law relating to marriage and separation remained confused and unhelpful well in to the nineteenth century, when this scene was set, so there was little to assist Hardy’s unfortunate characters, even had they been able to afford the services of a lawyer.
Alternatives to the traditional family law solicitor-client relationship are becoming ever more numerous and confusing. I hope to consider some of these in their historical context, within a series of articles for the St Leonard’s Neighbourhood Newsletter during 2013. The first of these will introduce the modern self-help alternatives to wife-selling. In April 2013, savage cuts to Legal Aid will surprise many families, including the complete withdrawal of legal aid for divorce and claims for financial remedies; disputes over children between separated couples, grandparents and others, (except where a narrow definition of domestic abuse can be proved in advance as a pre-condition ofeligibility).
Will the Exeter County Court services grind to a standstill as many predict? Will Exeter University’s innovative Community Legal Help Desk at the court, the CAB and other volunteer advice organisations be overwhelmed? I will aim to consider the consequences for the local family justice system of an ever-increasing number of “self-represented litigants”. If Family Lawyers are to be excluded entirely from the legal process for all but the “high net worth” party or parties, then who will look after the financially more vulnerable party to the same case, and if necessary dissuade them from the sort of unnecessarily impulsive decisions which faced Hardys characters and could have equally negative financial and familial effects for years to come?
© Bridget Garrood
Partner of Cartridges Solicitors.