Story: Divorce and separation

Page 1. 19th-century divorce and desertion

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Divorce was almost unknown in mid-19th century New Zealand. Although it was more common late in the century, it was still a scandalous, shameful rarity, which was seen as challenging the sanctity of marriage. Separation and desertion (walking out on marriage and family) were alternatives to divorce. Desertion was widely believed at the time to happen more often in New Zealand than elsewhere.

Sick of him

Matarena Reneti of Ngāti Awa was unhappy with the man she'd been matched with and married to by elders in the early 1930s. '[T]he match marriage man, I don't like him at all. And after the baby has come I get sick of putting up with him. I said to my sister, "I'm not having HIM anymore. Anyone can have him! You can have him! But I'M not having him." So I kicked him out, got rid of him, dissolved the marriage.'1

Māori and divorce

Divorce (and marriage) among Māori generally followed Māori tradition well into the 20th century. Adultery and desertion were accepted as reasons for divorce. When a marriage had been solemnised Pākehā-style, divorce had to be obtained in the same way. Up to the 1940s petitions (the document requesting a divorce, in which the grounds for it are laid out) were translated into Māori.

Divorce laws

Until 1867 anyone wishing to divorce had to apply to the English courts. In 1867 New Zealand’s first divorce law, the Divorce and Matrimonial Causes Act, was passed. The Supreme Court in Wellington became responsible for hearing cases.

The act allowed either husband or wife to seek a divorce, but the grounds on which they could do so were very different. To gain a divorce, a man only needed to prove adultery on the part of his wife. But for a wife to get a divorce, her husband had to commit adultery plus sodomy, incest, bestiality, bigamy, rape or extreme cruelty.

Rotten marriages

Whether 'the woman suffered from being associated with an unjust and cruel husband, [or] the man was the victim of a depraved and dissolute wife'2 made no difference. Once married, a mid-19th-century husband and wife had made their bed and were expected to lie in it. Such rotten marriages could be found throughout society, among the poor, the middle-class and the well-to-do.

Rates of divorce, desertion and separation

In 1868 there was one petition (application) for divorce. In 1900 there were 111. Although the rate of increase was dramatic, the actual numbers remained low.

Rates of desertion were not recorded, but scattered settlements, gold rushes and poor communications made it easy for husbands to vanish. Sympathy was widespread for wives left to manage alone, making a living as best they could while bringing up children.

Couples who wished to separate could simply do so, but in some instances contracts were drawn up spelling out allowances and conditions.

Independent living

When the Baileys, a Southland couple, separated in the early 1880s, the contract they signed allowed each to live independently of the other. Mrs Bailey got a weekly income, and kept money she already had. In return, she promised not to come within 20 miles (32 kilometres) of Invercargill Post Office, to pay her own debts, and not to pledge her husband’s credit. But when Mr Bailey claimed £842 banked in his wife’s name, the agreement went before a judge and was declared invalid.

Attitudes to divorce

Divorce provoked both strong support and firm opposition. Opponents of divorce said that the family was the basic moral, social and economic unit of society, and the ‘divorce made easy craze’ would bring social disintegration. Others argued that marriages were failing anyway, and that regulation was needed.

Most of the churches were staunchly opposed to divorce. The Catholic and Anglican churches argued that marriage could only be ended by the death of a spouse. The smaller churches – Baptists, Congregationalists and Salvation Army – agreed. The Presbyterian Church was more liberal: following the Scottish legal tradition, it allowed divorce on the basis of adultery by either husband or wife. But it was firmly against any further easing of divorce.

Who got divorced?

Generally, divorce was for the well-to-do, desertion for the working class. Separation, which occurred without official involvement, is impossible to track. It may have been the solution of choice for many unhappy couples.

Leaving a marriage was easier for a man than a woman. Men were paid more, so could support themselves. Women’s work paid less, and in the 19th century married women had seven or more children on average.

There were also legal and social factors making it harder for a woman to leave. If a woman left the marital home without her husband’s permission she had legally deserted the marriage, her husband’s obligation to support her was void, she had no right to custody and could be denied contact with her children.

Footnotes:
  1. ‘Matarena's story: on love and death.’ Broadsheet, December 1983, p. 20. Back
  2. William Moorhouse (MP, Westland), New Zealand Parliamentary debates, 1867, p. 256. Back
How to cite this page:

Megan Cook, 'Divorce and separation - 19th-century divorce and desertion', Te Ara - the Encyclopedia of New Zealand, http://www.TeAra.govt.nz/en/divorce-and-separation/page-1 (accessed 24 August 2019)

Story by Megan Cook, published 5 May 2011, reviewed & revised 8 Nov 2018