divorce courts have been shaming women since the 1800s

The BBC drama A Very British Scandal introduced a new generation to the scandalous Argyll v Argyll divorce. The case saw Ian Campbell, 11th Duke of Argyll seek a divorce from his wife Margaret, Duchess of Argyll, on the grounds of her alleged adultery with 88 men. More shockingly, the duke claimed to have photographic evidence of his wife engaging in adultery with at least one of the men.

The latest episode of the drama ends with the following sentence: “It was the first time that a woman was publicly humiliated by the British media.” Granted, it was extremely rare for photographs of someone engaging in a sex act to be used as forensic evidence, but the idea that Margaret Campbell was the first woman to be “publicly shamed” is far from accurate.

The voracious public interest in high-profile women who contravene patriarchal social norms predates Argyll versus Argyll by centuries. Women have long been judged by different standards than men, and nowhere has this been clearer than in divorce courts. Historically, divorce was extremely complicated and expensive, requiring petitions to multiple courts and a private act of Parliament. Before 1858, there were fewer than 320 divorces in England and Wales.

One of the loudest voices in favor of reform was that of writer and playwright Lady Caroline Norton. In 1836, her husband, MP George Norton, sued the then Prime Minister, Lord Melbourne, for “criminal conversation” (committed adultery) with his wife, Lady Norton. As a married woman living before the Married Women’s Property Act 1882, Lady Norton had no separate legal identity and therefore no right to defend herself in court.

Writer and social reformer Caroline Norton has won historic legal victories for married women.
Wikimedia Commons

Media coverage of the trial was extensive and included much speculation about the paternity of her youngest son. Former servants were bribed to testify that they had seen Lady Norton and Melbourne undressing. After a nine-day trial, the court ruled that they had not committed adultery. Despite this, Lady Norton’s reputation was in tatters and she was forced to remain married.

Undeterred, Lady Norton began to campaign for the reform of laws relating to child custody and the rights of married women. With the help of a sympathetic MP, Sir Thomas Talfourd, the Custody of Children Act 1839 was passed, giving mothers legal rights over their children for the first time.

In 1855, Lady Norton wrote an open letter to Queen Victoria, in which she pointed out “the grotesque anomaly which orders married women to be ‘non-existent’ in a country ruled by a female sovereign”. Lady Norton’s high-profile court case and subsequent campaign generated significant public pressure for reform.

The Divorce and Matrimonial Causes Act was passed in 1857. However, gender inequality was enshrined in the new law. A husband only had to prove that his wife had committed adultery, while a wife had to prove adultery plus another aggravating offense – namely cruelty, bigamy, abandonment, buggery or sexual assault. ‘incest.

The parties were either “petitioners” (those seeking a divorce) or “respondents” (those defending against charges), and proving the respondent’s guilt was essential to obtaining a divorce. The divorce court was established as an arena of gladiators, where couples were forced to air their accusations and counter-accusations in public.

Women continued to exist at the mercy of men. In 1869 Sir Charles Mordaunt filed for divorce from his wife Lady Harriet Mordaunt on the grounds of her adultery. Lady Mordaunt’s infidelities were discovered after she gave birth to a daughter, apparently conceived while her husband was abroad.

The baby was born with an eye infection and Lady Mordaunt, fearing it was syphilis, confessed to committing adultery with Viscount Lowry Egerton Cole, Sir Frederick Johnston and (most outrageous of all) Bertie, Prince of Wales. Charles Mordaunt discovered a cache of letters written by the Prince to his wife (which he later published) and he initially named the Prince as a co-defendant in his divorce action.

A married couple posing for a photo
At the time of the affair, the Prince of Wales also had a wife: Princess Alexandra of Denmark, married in 1863.
Wikimedia Commons

Following pressure from Buckingham Palace, the prince instead appeared as a witness. He testified that Lady Mordaunt must have been mentally ill to make such a false confession. Her father, fearing even more scandal, had his daughter declared insane by the king’s own physician, Sir William Gull, and she was committed to an asylum. This prevented Sir Charles and Lady Mordaunt from divorcing because her confession was worthless if she was mentally ill.

In 1875 Sir Charles again filed for divorce, citing only Viscount Cole as co-defendant. This petition was granted after Cole, under increased pressure from Buckingham Palace, agreed not to defend the suit. Sir Charles remarried in 1878. Lady Mordaunt remained confined to various institutions for the rest of her life.

Margaret Campbell, Lady Caroline Norton and Lady Harriet Mordaunt were not unique: there were thousands of women like them who were judged by a sexist legal system and shamed by a misogynistic society. The politicians, judges, lawyers, lawyers and journalists who created and maintained societal norms were (and remain) overwhelmingly male, and they did not hesitate to publicly humiliate and punish women who did not conform to them.

Journalists filled the courtrooms of divorce proceedings, with stories widely distributed in national and international newspapers. Following the Court Proceedings (Regulation of Reporting) Act 1926, journalists could only report judgments, but in Argyll v Argyll this was quite damning. The judgment took over three hours to read and it gutted Margaret Campbell’s character. Referred to as the “Dirty Duchess” by the press, this misogynistic nickname continues to be used almost 60 years later.

Slut shaming may not have been called that in the 1880s, or even the 1960s, but its existence cannot be denied. The Divorce, Dissolution and Delayed Separation Act of 2020 will become law later this year, finally removing the assumption that there must be a “guilty” party in divorce proceedings. Perhaps then society will move away from adversarial legal proceedings that demand blame and shame, and instead allow two flawed parties to sever legal ties with a modicum of animosity.

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