Divorce and Divorce Law in South Australia, 1859-1918
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SOMETHING OLD, SOMETHING NEW Divorce and divorce law in South Austalia, 1859-1918 Bridget Brooklyn Thesis submitted in fulfilment of the requircments for the degree of Doctor of Philosophy in the Department of History at the University of Adelaide 1988 Summary respectively, The two propositions put forward in the thesis concern' the first instance, I claim that divorce law in particular and the law in general. In 'safety valve' thesis, see other analyses of divorce, notably william o'Neill's marriage among the ascendant divorce as a product of the rise of the companionate rejecting this ¿lfgument out of middle class of the nineteenth century. while not in English (and consequently hand, I argue that the most sweeping change wrought to formal divorce increased South Austalian) divorce was its formalization. Access century that'instead of focusing upon so greatly in the second half of the nineteenth law, it is more appropriate to talk change in marriage as a cause of change in divorce The thesis measures about the influence of divorce law upon change in ma¡riage' men and women who seldom this influence by examining the use of divorce taw by played an important part in came from powerful social gloups but who nevertheless society' changing the dominant mafital values of South Australian material: court The sources used in the thesis are two distinct bodies of marital values shared by the records and fictional literature. They reveal a set of was based on strong opposition South Australian judiciary and the novelists which marriage. Each of these two to the resofi to divorce as an alternative to unhappy members of south groups attempted to oppose divorce: the judiciary by using marriage and the novelists by a Australia's ruling élite asmoral exemplars of good Each failed to forestall combination of moral imperatives and romantic enticements. inconsistencies which were the resort to divärce because their positions entailed for divorce. Finalþ, the exposed as untenable against the pressure of the demand of divorce about the thesis draws conclusions from the South Australian example historians of the relationship between the law and its users, taking issue with other and victim' powerful left who see this relationship as necessarily one of oppressor and powerless. Declaration This thesis contains no material which has been accepted for the award of any other degree or diploma in any university and, to the best of my knowledge and belief it contains no material previously published or written by another person, except where due reference is made in the text. I consent to it being made available for photocopying and loan. Bridget Brooklyn Acknowledgments My thanks go to Dr Vivien Brodsþ, of the History Department of the University of Adelaide, for providing a topic and supervising the first eighteen months of the project and to Dr Robert Dare, of the History Department of the University of Adelaide, who assumed supervision thereafter. I also wish to thank other members of the university community who offered me encouragement, help and advice: Dr Carol Bacchi, Dr Ian Davey and Dr John Wanna. Of all those who smoothed over the difficulties of postgraduate research in other ways I would like to thank in particular Ms Leonie Kallis, Ms Chris Reardon, N{r Rodney Teakle and N{n Val Siebert, all at some stage during my research on the staff of what is now the Public Record Office of South Australia. I would also like to thank Ms Margy Burn and Ms Susan Woodburn, both Special Collections librarians at the Barr Smith Library of the Univenity of Adelaide during the time of my research. Abbreviations Register The S outh Australian Re gister P.R.O.S.A. The Public Record Office of South Austalia G.R.G. Government Record GrouP A.E.R. ReP. All England RePorts RePrint L.T. (N.S.) Law Times Reporß (New Series) CONTENTS page Introduction 1 PART I: THE COURT Prologue to Part I 7 Chapter One: The Imperial law in the colonial courEoom 9 chapærTwo: Noblesse oblige andjudicial opposition 1p divorce 46 Chapúer Three: The reüeat of the judiciary 79 Epilogue to Part I L12 PART II: THE NOVELS Prologue to Part II rL6 ChapterFour: "Apearl of greatprice": thedutiful spousein the nineteenth century novel 118 Chapter Five: "The pearl of m¡th": marital duty and romantic love r57 Chapær Six: "A full-blown fose": romantic love and the resort to divorce 187 Epilogue to Part II 2t6 PART III: THE OLD AND THE NEW Prologue to Part III 2t9 Chapter Seven: Women, marriage and divorce law 221 Chapter Eight: Duty and happiness in the South Australian divorce court 257 Epilogue to Part III 286 Conclusion 289 Appendices 293 Bibliography 30s Introduction The sixty years of divorce with which this thesis is concerned encompass the filing of South Australia's first petition under the Matrimonial Causes Act, No 22 of 1858, and the last filed in 1918 before the amendment of that year received royal assent on29 May 1919 (No. 1356 of 1918). This amendment gave women equal access with men to the single ground of adultery for the dissolution of marriage for the first time. The thesis studies South Ausfralian divorce as an aspect of legal history and thus says little about what was peculiar to divorce in South Australia. As a piece of colonial legislation, the Matrimonial Causes Act closely resembled both the English Divorce and Matrimonial Causes Act 1857 and divorce legislation enacted in other British colonies. The following history examines South Australian divorce law between 1859 and 1918 as a case study of the use of English divorce law in a predominantly British society; the characteristics of South Australian divorce no doubt had their counterparts in other nineteenth century English societies. South Australian historiography has to some extent defined itself with reference to what South Australia was not. It was not a penal colony. If the absence of convicts was considered a virtue by South Australia's founders and early colonists, a disproportionately strong odour of self-congratulation still pervades the South Australian atmosphere and is exhaled through its histories, which R. J. Holton describes as predominantly Whiggish.l Holton's call for a South Austalian history which celebrates its "plebeian" contribution, however, stresses the importance of the rise of the suburban middle classes in the twentieth century. Yet their histories are as susceptible to Whiggish interpretation as the "patrician" ones because it is the questions asked of historical material rather than the material itself which determines the Whiggishness of an historical tradition. I n. J. Holton, "Twentieth Century South Australia: From a Patrician to a Plebeian View", in E. Richa¡ds (ed.), The Flinders history of South Australia: social history (Netley, S. 4., 1986), p.550. 2 Our preoccupation with what South Australia was not nevertheless incorporates emanating an assertion of what it was and was intended to be: a concentrated settlement is an from a planned city peopled by equal numbers of men and women.2 The result historical tradition defined with almost exclusive reference to these origins. What it posing lacks more than the voices of unheard groups are the answers to (and the of) questions which our Wakefieldian tone has tended to silence. Holton exposes this lack calls more effectively in his conclusion than in his inroductory criticisms, when he for twentieth century South Australian history comprising "dilemmas such as the compatibility of community and individualism, of sectional interest and public welfare, from of individual freedom and family responsibility".3 These are universal dilemmas, which no history can claim exemption. The problem, then, is not South Australian patricianism but an exaggerated be dismissed sense of South Australian uniqueness. This thesis should therefore not families; for its unabashed preoccupation with a handful of prominent South Ausffalian South Australian history is characterized less by its "patrician" themes than its Wakefieldian overtones. Our gentry is regarded as peculiar because Wakefield planned gentries to have one from the outset,5 an emphasis which ignores the fact that colonial which are not planned still develop. Scratch the surface of the most rough-and-tumble ouÞost of Empire and you find a colonial "aristocracy" almost as old as the colony particular ißelf.6 J. B. Hirst has argued that our gentry did have local idiosyncracies, in its tendency toward urban living and the conglomeration of its dwellings with the humble cottages of plebeian South Australians.T But in South AusEalian historiography pp.78-80. 2 D. pike, psradise of dissent: South Austrslia 1829-1857,2nd. ed. (l¡ndon, 1967), 3 Holton,"Twentieth Century South Aust¡alia", p.564. a Ã-ri"Ji- foiniïur U""n made by Peter Muni in "Gesta Dei per Australianos", Australia 1888, Bulletin No.3, (December, 1979), pq.s-n. 5 -s;;;'¡";Pike, Paradise of dissent,P38. weste.rn district of 6 ;;ñ;t; M.l. üi¿¿te, Men of yesterday: a sociat li!.tory of the Victoria tB34-t'8g0 (I-ondon, 1961) and Þ.-De Serville, Port Phillip gentlemen and good sociery in Melbourne before the gold rushes (Melbourne, 1980). (Clayton' il. B. iiÀt Aietaide oid th, country 1870-1917: their social and political relctionship Vic., 1973), p.38. 3 in general, even our plebeians are depicted as peculiar because Wakefietd planned to have them too. Both too much and not enough has been made of South Australia's specialness. The need to reassert it for its own sake is reminiscent of Oscar Wilde's observation that the only thing worse than being talked about is not being talked about. The persisænce of the theme of our individuality, symbolized in the motif of the Wakefield plan, suggests an adolescent unease about our identity manifested in a reticence to explore conflicts which South Australia shares with all societies.