Licensed or Licentious? Divorce with Remarriage in Reformation England

By Krista Kesselring; posted 23 October 2016.

We know that English law did not allow divorce with remarriage throughout the Catholic Middle Ages, and that the prohibition continued even after the Reformation, despite every other Protestant jurisdiction coming to allow full divorce in at least some few circumstances. We know that; but many people in the Reformation era seemed to think otherwise. In the late 1500s, Hercules Foljambe, for example, married and ‘divorced’ three women in rapid succession – Anne Hardwicke, Elizabeth Barker, and Sarah Poge. When Sarah’s father sued Hercules on her behalf, the ensuing cases produced a volume of legal documentation that invites us to revisit the issue of divorce in post-Reformation England and that perhaps gives us some hint of why the English authorities ultimately shied away from allowing divorce.

In England, after the Reformation as before, people could get annulments or separations, but not divorces that allowed one or both parties to take a new spouse. (Confusingly, for us and for people then, these separations were called divorces — divorces a mensa et thoro, literally from ‘table and bed’ — but they did not dissolve the marriage bond and allow re-marriage.)  Only from the 1670s or 90s did full divorce by private Act of Parliament become possible; only from 1857 did judicial divorces begin.[1]

We know, too, that many people nonetheless divorced themselves informally, without sanction of law, and moved on to new partners. Some couples produced private deeds of separation. In later years, notoriously, ‘wife sales’ became rituals by which husbands and wives could move on to new partners in the eyes of their communities, though not with the sanction of law.[2] That people left their spouses and took up with new partners should no longer surprise us. What is a bit surprising (to me, at least) about the Foljambe case and some others of its ilk and era are the explicit defences of such illicit divorces and remarriages as legitimate and lawful. These were not – or not all – people covertly doing things they knew to be illegal. Whether because they mistook the law of the land or thought themselves justified by a higher law, some people engaged in such extra-legal separations openly insisted that their actions were licensed, not licentious. In the case of someone like Hercules, who seems to have been a complete cad, we might well deem those defences disingenuous, but their existence points to something more than simple confusion about the law and prompts us to ask again why, exactly, full divorce did not emerge from England’s Reformation.

The story of Hercules Foljambe and his three wives is not exactly unknown– far from it, in fact. Most every history of divorce in England mentions it at least briefly, citing mentions in the law reports.[3] Francis Moore, an Elizabethan jurist, included a brief note of the case in his reports, noting that Edward Rye, the father of Sarah Poge (the third woman Hercules had married though he had two earlier wives still living) launched a case in the Court of Star Chamber against Hercules. Moore observed that the judges declared Foljambe’s marriage to Poge invalid as his first wife yet lived and that his divorce from her had been merely a separation, not an absolute dissolution of the marriage bond. John Whitgift, conference-of-divinesArchbishop of Canterbury, told the court that he had called to Lambeth the wisest divines and civilians, and they had all agreed that a marriage subsequent to a judicial separation would not stand.[4]

William Salkeld, a King’s Bench sergeant from 1689-1711, later offered a brief, mangled comment on Rye v Foljambe in his influential case notes, but with a significant twist: he observed that “Divorce for adultery was anciently a vincula matrimonii [that is, a full divorce] and therefore in the beginning of the reign of Queen Elizabeth the opinion of the Church of England was that after a divorce for adultery the parties might marry again. But in Fuljambe’s case…that opinion was changed.”[5]

For some time, Salkeld’s report of the case was taken as evidence that divorce with remarriage had in fact been allowed in the first decades of the Reformation, with the case cited in nineteenth and early twentieth century parliamentary debates about divorce. [6]  In the 1910 debates, though, Lewis Dibdin, very much an opponent of divorce, turned his attentions to it.[7] He insisted that no, in fact, ‘the Church’ had never formally allowed full divorce. Archbishop Cranmer’s draft code of canon law, with its provisions allowing divorce with remarriage, was only ever a proposal, never formally adopted. The Foljambe decision, he insisted, represented merely a clarification of existing practice and law not a reversal of an early Reformation tolerance for divorce. Dibdin staunchly insisted that any effort in his own day to justify full divorce with reference to its supposed existence in the era of Cranmer was based on bad history. He subsequently expanded for publication the memorandum he had prepared for the parliamentary divorce commission, producing a work now routinely cited in discussions of English divorce law.[8] Dibdin’s efforts in 1910 failed in the most immediate sense – he proved unable to halt the extension of the permissible grounds for divorce – but his narrative of the history of divorce has had an enduring influence.

I don’t want to go back and argue that Dibdin himself erred. But having chanced across the files of Star Chamber proceedings in the Foljambe case, which give us much more detail than the notices in the law reports and prompted a bit of digging around its edges, I think it’s worth plumbing again the disputes about divorce in the Reformation years. Foljambe and others argued that they did have license to remarry after a separation, in ways that complicate any simple assertion that full divorce was not possible in early modern England and raise interesting questions about the nature of authority, precedent, and law in the history of marriage and its dissolution.

Originally from a prominent Derbyshire family, Hercules first married Anne Hardwick, but secured a separation from her on grounds of her adultery in the Consistory Court of Lichfield and Coventry in 1581. He became a sea captain and spent much of the 1580s and 90s serving in the wars in the Netherlands and in Ireland. Back long enough in 1586 to get himself imprisoned for fighting with Sir Francis Leeke, he found himself called before the privy councillors who tried to effect a formal reconciliation in this dispute.[9] Nearly a decade later he was back in London, where he married Elizabeth Barker in February of 1595. Two years later, they had a daughter, Odelia.[10] As best as can be reconstructed from later depositions, he and Elizabeth were then granted a divorce in the Court of Arches. When, exactly, and on what grounds is unknown. In December 1598, he was implicated in a murder,[11] which may have contributed to his decision shortly thereafter to accompany George, earl of Cumberland on his privateering voyage to Puerto Rico. (According to Hercules, at one point he personally saved the earl from drowning.[12])  By 1601, he was back and ready for marriage once again: Hercules  contracted a third union, this one with Sarah Poge, daughter of Edward Rye, widow of George Poge, and mother of five children.

When exactly they married I haven’t been able to discover, but in a fateful lease signed inlucas-de-heere May of 1601, Sarah was already referring to Hercules as the man she ‘intendeth to take to husband’.[14] We’ll return to Sarah Poge in a moment, but it seems that about this time, Hercules also took up with a fourth woman, a Susan Lyon, lodging her with an acquaintance after getting her pregnant.[15] So 1601 was clearly a busy year for Hercules. It also saw the beginnings of his protracted engagement with the Court of Star Chamber.

In May of 1601, Sarah Poge leased her interest in the rectory and glebe of Misterton to Godfrey Garrett and Francis Gregory, two friends of her intended husband Hercules, for a token rent.[16] Apparently she did so on the understanding that she was effectively trading this for a jointure from Hercules. He entered a bond with Garrett and Gregory whereby they pledged to make Sarah a jointure of a hundred pounds a year, within a few years of the marriage, and they later assigned the lease to him. Sarah knew that Hercules had had (or had) other wives, and apparently voiced some reservations, but later reported that both Garrett and Gregory had assured her of the legality of the projected union. Garrett told her it would ‘be lawful to marry with’ Hercules, and that if she ‘did doubt of it, she had no fear or knowledge of God in her.’ Possibly alluding to the argument made by some Protestants that the prohibition of remarriage after divorce was a Catholic imposture, Garrett continued to say ‘that he was no Christian that would dissuade her from the said marriage’.[17]

Relations between Sarah and her new husband soon soured, though, perhaps because of her family’s continued misgivings about the legality of the union and maybe, too, because of his relations with Susan Lyon. Sarah soon left the house she shared with Hercules. Her father, Edward Rye, began insisting that he had title to the rectory, and that Hercules’s habitation there and Garrett’s lease were both invalid. On 28 September, much of the Rye family descended upon the property to evict its residents. Godfrey Garrett launched a case in Star Chamber in November 1601, complaining of the dispossession. He called Edward Rye a man ‘of violent and hard disposition’, apparently well matched by his wife Maude, described as ‘being of a manly disposition and hot spirit far unfitting her sex.’[18] Edward Rye then entered his own complaint in Star Chamber, trying to assert his right to the rectory of Misterton. He noted in passing, too, that he had received from the High Commissioners in York an appointment to serve as guardian to his daughter’s children, who Hercules refused to hand over. Even as agents gathered their depositions for this case, Whitgift held his conference at Lambeth which secured the statement that a divorce a mensa et thoro, even if for adultery, did not allow remarriage. Thus, whatever rights Hercules had by virtue of marriage to Sarah were null and void.

One hopes that the resolution coming from Whitgift’s conference settled the matter of the children’s custody in favor of Sarah and her father. It did not, however, finally and fully resolve the central matter of the disputed rights to the Misterton rectory. In fact, the validity or legality of the union was not at all determinative. Hercules and his friends still had the signed lease, after all. Sir Edward Coke as Attorney General launched a third case in Star Chamber on Hercules’s behalf, in which Hercules complained of a second attempt at dispossession, in July of 1602, with the Ryes this time emptying chamber pots on the beds, hacking up Hercules’s clothing, and swearing that if Hercules had been there, they would have cut him up into pieces as small as they tore his clothes.[19] Sarah’s sisters and other women of the family joined in the eviction, all reportedly ‘having disguised themselves into strange shows, like unto Irish soldiers and other unusual fashions’.

Eventually, but none too quickly, local JPs secured the Ryes’ removal and the dispute returned to the courts. The matter then went to arbitration, whereupon it seems that Hercules did regain possession of the property. A commission written sometime after 1603 urged its recipients to restore Foljambe to possession of the rectory and ‘likewise to do him what further good and lawful favour you may in respect of the equity of his cause [and] his long service done to our late sister in her wars of diverse kingdoms.’[20] If Hercules did regain possession, though, he wouldn’t have long to enjoy the delights of Misterton, as he spent at least a few years after the turn of the century imprisoned for debts emerging from other transactions gone awry. What happened to Sarah Poge thereafter, I don’t know.

So, that’s Rye v Foljambe.  What might we learn from the case? We’ve seen, already, that some came to see it as a turning point away from an earlier allowance of divorce with remarriage, while Dibdin and those who followed him saw it simply as a clarification, as something that when seen alongside the canons and so-called bigamy act of 1604 finally ended a period of confusion and uncertainty.[21] I’m not sure that it was either, really. Certainly, the Church had not officially allowed full divorce before this case; the recommendations of Cranmer’s Reformatio had not and did not become law. But neither did this case and its accompanying developments merely or adequately clarify existing practice nor effectively counter the certainty among some that such divorces with remarriage were indeed lawful in the eyes of God.

When Hercules was asked about his marriages he said yes, ‘it is true that at the time of the …marriage with … Sarah Poge there were two other gentlewomen living who had been married to this defendant.’ But, he continued, ‘he was informed by divers divines and civilians of great account and learning whose counsel he used therein [that he]…was lawfully and according to the ecclesiastical laws of this realm divorced from the said two gentlewomen which had been his former wives, and thereby lawfully might by the laws of God and this realm, as he was informed by the said divines and civilians, marry again.’[22]

Did he actually believe this? Had he in fact consulted with ‘divines and civilians of great account and learning’? It is entirely possible, of course, that he was simply lying. But his account had enough plausibility to prompt Whitgift to call his conference of divines to secure a clear statement, and it had many echoes, before and even after. In 1574, Justice Dyer discovered with some shock a Martin Harborough, who insisted that he had legitimately married his second wife upon ecclesiastical license after his first wife divorced him.[23] In the middle of Elizabeth’s reign, three Norwich men, including an alderman, asserted in court their rights to remarry after separating from adulterous wives.[24] For a parliamentary discussion in 1597, someone prepared a list of cases that had prompted the author’s concern not just that irregular unions were taking place, but taking place with ostensible license from clerical authorities. One of the instances it listed was that Susan, daughter of the bishop of Lichfield and Coventry, who married after her own judicial separation a man who had himself been divorced twice.[25] In 1589, a London church court did indeed allow one such remarriage to stand, for ‘certain causes that moved them’ to do so – unhelpfully not specified in the record.[26] Clearly license could be had, in some circumstances.

(William Parr)

William Parr, marquess of Northampton, notoriously obtained the one and only parliamentary divorce of the sixteenth century with parliamentary recognition of his second marriage, to Elizabeth Brooke. Now, true, this was reversed under Queen Mary, but recognized once more under Elizabeth.[27]  Parr insisted that ‘making marriages indissoluble was but a part of the popish law’, a view echoed by others, including John Rainolds, who called indissolubility ‘popish doctrine.’[28]

After obtaining a separation of bed and board from his first wife, Sir John Stawell received in 1572 a license to remarry from none other than Matthew Parker, the Archbishop of Canterbury, upon the intercession of the Bishop of Bath and Wells, as well as letters of support from William Cecil and the earl of Leicester.[29]

In one of the more striking cases, a bishop himself received license of a sort. John Thornborough, bishop of Limerick (and later bishop of Bristol then of Worcester), divorced his wife in 1595 and immediately remarried.

NPG 5234; John Thornborough by Unknown artist
(Bishop John Thornborough)

His support from the queen never wavered. Matthew Hutton, the archbishop of York wrote to Cecil in April 1599, noting that he had received Cecil’s letter relaying the queen’s ‘direction for the well using’ of Thornborough and her ‘gracious care of his well doing’. Hutton observed that the ‘common cause of religion’ had ‘received some disgrace by his unfortunate marriages, especially by the last, which is flat contrary to her Majesty’s ecclesiastical laws of this land.’ Yet, Hutton wrote, he had long been of the opinion that the innocent party in a marriage marred by adultery might remarry. He was not confident that Thornborough was all that innocent, given the second wife’s suspected pregnancy before the union. But if the bishop’s protestations of innocence were true, Hutton continued, ‘then in my judgement, in foro conscientiae [as a matter of conscience], this his marriage is lawful.’[30]

Hercules Foljambe was not alone, then, in arguing that his remarriages after separations for adultery were legitimate, nor was his claim that divines had assured him of their legitimacy all that implausible. Here, then, we have people insisting that the very unions some others denounced as ‘licentious adulteries’ were in fact licensed, in all sorts of ways. This wasn’t ‘confusion’ so much as disagreement about the nature of authority and legality. In such a context, what does it mean to say that divorce with remarriage was ‘illegal’? And given the strength and certainty of the sense amongst some that such remarriages had warrant, one wonders again why the English didn’t come out of their reformation with clear sanction for divorce.

In his study of the history of divorce, Lawrence Stone maintained that the reasons for England’s exceptionalism ‘lie party in the tortuous and zig-zag path by which it moved from the Catholic into the Protestant camp; partly in disputes among English Protestants about which new divorce code to adopt; and perhaps also in understandable psychological sensitivities about marriage of one strong-willed spinster sovereign.’[31] The Foljambe case points us to another peculiarity to consider: coverture, the distinctively common law notion that a married woman’s legal identity became subsumed to her husband’s. A woman’s moveable goods became her husband’s; her real estate was his to control; and she could neither sue nor be sued in common law courts independently of her husband. With English law’s concept of coverture, husband and wife became more fully “one person” than in other legal systems.[32] True, coverture and full divorce could be made to co-exist, as would be seen in the New England colonies, but the one complicated the other. A commitment to coverture arguably made adoption of full divorce less likely.

Certainly, in practice, however much people may have felt they had a right to marry after divorce, however long they may have been able to cohabit and be treated as a married couple, however performative and flexible aspects of ‘marriage’ may have been, that license ran aground on the shoals of coverture and property rights. One of the surprising things about the Foljambe case when seen in its fuller documentation, rather than just through the brief comments of law reporters, is that the status of the union between Hercules and Sarah wasn’t all that relevant to the core issue of who had rights to the rectory; where it seemed to matter most was simply in who could launch the suit. If Sarah was married to Hercules, she couldn’t sue him; indeed, if she was a married woman, she couldn’t sue anyone at all.

Another case decided shortly thereafter provided the clearest limits to the license people claimed for themselves, that of Mary Stawell: Despite being divorced for her adultery in the 1570s, and despite her husband receiving licence from Archbishop Parker to take a new wife, in 1604 the first Lady Stawell successfully sued for her dower after John Stawell’s death and left his second so-called ‘wife’ with nothing. The judges in the Court of Common Pleas reiterated that a separation a mensa et thoro, even if for adultery, left the marriage bond and thus coverture intact.[33] The marriage bond persisted, in legally enforceable ways that carried very real consequences: ownership of goods and control of lands that a woman brought to the marriage remained with her husband, and she retained the right to dower upon his death.[34]  Coverture, as much as anything else, set the limits beyond which would-be divorcees could not pass.


[Main image courtesy the British Library, Lucas de Heere, A Description of England, ADD MS 28330 f. 33r, Four Englishwomen in Dress of the Elizabethan Era.]

[1] For overviews of the  history of divorce in England, see for example Lawrence Stone, Road to Divorce: England, 1530-1987 (Oxford, 1990) and Roderick Phillips, Untying the Knot: A Short History of Divorce (Cambridge, 1991).

[2]Tim Stretton, ‘Marriage, Separation and the Common Law in England, 1640-1660’, The Family in Early Modern England, ed. Helen Berry and Elizabeth Foyster (Cambridge, 2007), 18-39;  R.H. Helmholz, Marriage Litigation in Medieval England (Cambridge, 1974); Helmholz, Roman Canon Law in Reformation England; Sara Butler, Divorce in Medieval England: From One to Two Persons in Law (New York, 2013); Caroline Dunn, Stolen Women in Medieval England: Rape, Abduction and Adultery (Cambridge, 2013); Joanne Bailey, Unquiet Lives: Marriage and Marriage Breakdown in England, 1660-1800 (Cambridge, 2003).

[3] See, for example, Stone, Road to Divorce, p. 306-7 (though he misdates the case to 1598, a misdating that appears in subsequent works by others); Phillips, Untying, p. 33; Stretton, ‘Deeds’, pp. 32, 37;  Alan Macfarlane, Marriage and Love in England, 1300-1840 (Oxford, 1987), pp. 225-7.

[4] 72 English Reports 838. See also the brief note in the posthumously published reports of William Noy, the late Elizabethan MP and barrister who went on to become Charles’s Attorney General: ‘Rye against Fullcumbe. H. 44 Eliz. F. being divorc’d for incontinency of the wife, he afterwards marries P. the daughter of Rye, living the first wife. By the whole Court that is a void marriage; for the divorce is not, but a mensa & thoro, and does not dissolve vinculum matrimonii. And by Whitguift Archbishop of Canterbury. So is the opinions of divines and civilians.’ 74 English Reports 1066.

[5] 3 Salkeld’s Reports 138.

[6] See, for example, 1852-53 [1604] First Report of the Commissioners Appointed  by Her Majesty to Inquire into the Law of Divorce [House of Commons Parliamentary Papers Online], pp. 6, 51, 52, 54; 1 Hansard 14: 333, 3 Hansard 145: 483-538. On the Reformatio, see Gerald Bray, ed., Tudor Church Reform: The Henrician Canons of 1535 and the Reformatio Legum Ecclesiasticarum, Church of England Record Society, vol. 8 (Boydell, 2000).

[7] On Dibdin, See E.S.S. Sunderland, Dibdin and the English Establishment (Bishop Auckland, 1995).

[8] Lewis Dibdin, English Church Law and Divorce (London, 1912).

[9] And/or the judges in Star Chamber: see Acts of the Privy Council, XIV, p. 156, a note interleaved with the privy council papers that seems to have resulted from actions in Star Chamber. For some of Foljambe’s other activities in his early years, see the University of Nottingham’s collection of Archdeaconry records, which note a couple of tithe disputes from the 1570s, with Foljambe as farmer of the rectories of Mansfield Woodhouse and Skegby, suing for nonpayment of tithes, and one presentment by the Skegby churchwardens complaining that he had allowed the chancel to fall into ruin: AN/LB 215/3/15, AN/LB 245/2/4; AN/LB 215/2/4; AN/PB 292/5/26; AN/LB 215/1/54-60.

[10] LMA, St Bride Fleet Street, Register of Marriages, 1587-1653, P69/BRI/A/002/MS06537; A True Register of all the Christeninges, Mariages and Burialles in the Parish of St. James, Clarkenwell, ed. Robert Hoveden…Harleian Soc., 1884, vol. 1 (1551-1700), p. 18.

[11] J.C. Cox, quoting the Chesterfield parish register, notes that Robert Eyre died ‘per violentiam ab Hercule Foljambe’: Notes on the Churches of Derbyshire (Chesterfield, 1875), I, p. 172.

[12] Foljambe refers to his service on the voyage to Puerto Rico in TNA C 3/479/49. The detail about saving the earl from drowning comes from a calendar note of a petition Foljambe sent to James I, listed in the Nottinghamshire Archives [hereafter NA] catalogue as DD/FJ/5/1/7, no. 18, part of the Foljambe of Osberton deposit. According to the archivist, this particular volume of papers remains with the Foljambe family; a representative of the family insists that it was part of the deposit.  The papers thus seem to be in limbo at the moment, with only the catalogue descriptions to work from. An extract from this particular petition is included, however, in John Gough Nichols’s Collectanea Topographica et Genealogica, vol. 2 (London, 1835), p. 85.

[13] NA, DD/FJ 4/13 (Letter Testimonial from the Consistory Court of the Bishop of Coventry and Lichfield of a sentence of divorce between Hercules Foljambe and Ann Hardwick his wife for adultery).

[14] NA, DD/FJ/4/13/3 – lease, dated 24 May 43 Elizabeth (1601).

[15] TNA, C 3/285/77.

[16] NA, DD/FJ/4/13/3.

[17] TNA, STAC 5/R38/5.

[18] TNA, STAC 5/G2/5.

[19] TNA, STAC 5/A52/16.

[20] From NA calendar description of DD/FJ/5/1/7, f. 85, as per fn 12; see also TNA, SP 14/9A, f. 152, a commission dated 29 September 1604 to examine the cause between Foljambe and Rye, as the latter had once more ejected the former.

[21]  For the canons, see Bray, ed. The Anglican Canons, 1529-1947, Church of England Record Society, vol. 6 (Woodbridge, 1998), esp. pp. 243, 407. For the ‘Bigamy Act’, more properly titled ‘An act to restrain all persons from marriage until their former wives and former husbands be dead’, see 1 Jac. I, c. 11 and Bernard Capp, ‘Bigamous Marriage in Early Modern England’, Historical Journal 52.3 (2009), 537-56.

[22] TNA, STAC 5/R38/5.

[23] Dyer’s Reports, ed. J.H. Baker (**), p. 299.

[24] Ralph Houlbrooke, Church Courts and the People During the English Reformation, 1520-1570 (Oxford, 1979), pp. 70-1.

[25] BL Cotton MS Cleopatra F II, f. 223, reprinted and contextualized in John Strype, The life and acts of…John Whitgift (London, 1718), pp. 222-3.

[26] LMA DL/C/B/043/MS 09064/013, fol. 28v.

[27] Parliamentary Archives, HL/PO/PB/1542/34&35H8n39 (‘Concerning the Bastardy of Lady Parr’s Children’);  HL/PO/PB/1/1551/5Ed6n30 (‘Touching the marriage of the Marquis of Northampton’); HL/PO/PB/1/1553/1M1s2n30 (the Marian repeal of the divorce).

[28]  For Parr’s petition requesting the divorce and setting out his justifications, see TNA SP 10/2, fols. 106-12.

[29] See Dibdin, Divorce, pp. 83-90, which reprints lengthy quotations from the relevant papers, then held in the Brown MSS in Taunton Castle.

[30] TNA, SP 12/270, f. 137.

[31] Stone, Divorce, p. 301.

[32] On coverture, see Stretton and Kesselring, eds., Married Women and the Law: Coverture in England and the Common Law World (Montreal, 2013) and Amy L. Erickson, “Capitalism and Coverture,” History Workshop Journal 59 (2005), 1-16.

[33]  Dibdin, English Church Law and Divorce, 82-92, 152-3; 78 English Reports 89.

That adulterous women explicitly and specifically got to keep their dower may seem an innovation to those familiar with the statements by some medievalists that adulterous wives were barred from their dower after the 1285 Statute of Westminster, but in fact the statute and the cases they discuss deal with adultery followed by the wife’s abandonment of (or ‘elopement’ from) her husband. It seems that it wasn’t so much the adultery as the desertion that lost them their dower. See, for example, Dunn, Stolen Women and ‘Forfeiting the Marriage Portion: Punishing Female Adultery in the Secular Courts of England and Italy,’ in Regional Variations, ed. Korpiola; Paul Brand, ‘”Deserving” and “Undeserving” Wives: Earning and Forfeiting Dower in Medieval England’, Journal of Legal History 22 (2001), 1-20; Barbara Hanawalt, ‘The Widow’s Mite: Recovery of Dower in Late Medieval London’, in Upon My Husband’s Death: Widows in the Literature and History of medieval Europe, ed. Louise Mirrer (Ann Arbor, 1992), 21-45. T.E.’s Lawes Resolutions of Womens Rights, the anonymous treatise on women’s legal rights, published in 1632 but probably written in the late Elizabethan years – and before the Stawell case – notes that a separation a mensa et thoro doesn’t lose the wife her dower (p. 225). Though he doesn’t specify that a woman whose husband obtained a separation on the grounds of her adultery kept her dower, it seems to be included in the general statement, and where he notes that she would lose her dower in some cases, he specifies that the loss of dower was for elopement, not (it seems) simple adultery (p. 144). Note, though, that Cranmer’s Reformatio did recommend that women divorced for adultery lose their dower (as well as proposing that a man divorced for adultery restore his wife’s dowry and give her half of his goods).

[34] See Monique Vleeschouwers-Van Melkebeek, ‘Separation and Marital Property in Late Medieval England and the Franco-Belgian Region’, in Regional Variations of Matrimonial Law and Custom in Europe, 1150-1600, ed. Mia Korpiola (Leiden, 2011), 77-98. On the alimony a separated wife might receive, see Stretton, Women Waging Law, p. 145.


  1. Norfolk seems to be a center for this — I have a case where a man claimed in the 1580s that his second marriage was with the permission of the Bishop!


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