Understanding Ancestor’s Dissolution of Marriage

Separation,  Maintenance or Divorce Records 

Our ancestors did not always live in marital bliss. Legal separations and divorces, although not common, were available. Since legal separations and divorces were Court ordered they give us extensive genealogical data.

Genealogy Data from Records
Besides the names of the couple and date of marriage and divorce, you may also find the couple’s birth dates as well as names and births of children. These records may also provide detailed reasons for divorce and property owned, revealing the life-style of your ancestors. 

Where to Find Early Divorce Records
In Colonial America these records may be found in the early books of Judgments and Decrees. Know, however, due to the legal difficulties and restrictions of obtaining a divorce, it is possible that your ancestors remained married, yet legally lived separately by posting newspaper advertisements. Newspaper announcements to dissolve a marriage were also accepted as a form of legal separation in Colonial America.

Divorces from Medieval Europe to Colonial America
If we consider the social norms for women during Medieval Europe we first understand that, in general, married woman did not have a separate legal existence from her husband. And although a bit more liberal, this basic accepted social norm was carried to Colonial America.

Divorces were not easily obtained through the Court systems due to the many restrictions; and, Church declarations of your eternal demise discouraged the practice. Filing for divorce wasn’t even available in all of the Colonial states prior to the Revolutionary War.

Prior to 1747, adultery was the only official reason for a separation or divorce, in those states that allowed it.  And, it was really only available for the privileged. Even then, the couple was often still legally married and could not remarry, since they were granted a “divorce a mensa et thoro.” 

What is “Divorce a Mensa et Thoro?”
“Divorce a mensa et thoro” actually means “divorce from bed and board.” Today we would call it a legal separation, but we have lost the historical advantages of it. The “divorce a mensa et thoro” legally allowed the couple to live separately but their marriage was still in tack in the eyes of the church. Surely community rumors said otherwise, but by law they were still legally married.

The “divorce a mensa et thoro” allowed the couple to meet all the church requirements and therefore they could be blessed and buried with the “Saints.” The divorce ( a sinner) was not allowed to be interred in the Church cemetery, since they “ couldn't inherit the kingdom of God” anyway.

There was also a stigma for children if their parents were divorced, so this too was avoided if you just lived separately under a separate maintenance agreement. If a child was born after the separation, a Church baptism was still possible, since the child was “legitimate.” Avoiding the wife’s embarrassment of being destitute, the husband was still responsible for the life style of his wife and children, albeit across town.

“Divorce a mensa et thoro” or marital separation, existed in Rhode Island as early as the mid-seventeenth century. 

After the Revolutionary War
If adultery cruelty, abuse, or abandonment could be proven a couple could dissolve their marriage more readily after the American Revolution, even though grounds for divorce remained limited until 1798.

By the early nineteenth century, divorces were granted in almost every state. However, legal divorces still carried restrictions. Generally, in the case of adultery or cruelty, only the innocent party was legally freed to remarry. This is equal to the divorces we have today.

These early divorces ("divorce a vinculo") did not necessarily allow the guilty party to remarry, except upon the death of the innocent party. To avoid this, many of the guilty (mostly men) left the community and left their past behind them, remarrying freely

Kathleen Brandt
Website: a3Genealogy.com
Accurate, Accessible Answers

(Originally published 17 Sept 2010; Separate Maintenance or Divorce Records )