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Farquhar & the Divorce Laws....by
John Mortimer
In The Beaux’ Stratagem the
English Theatre looked, for the first time, with a cool and modern eye on the
subject of divorce. Up to then,
apart from Henry VIII’s turgid tangle with the ecclesiastical law, matrimonial
unhappiness on the stage was either a matter to be endured or violently
terminated by a resort to the poignard, the pillow or the poisoned chalice.
Mr. and Mrs. Sullen are separated for the sole reason of the absence of
mutual contentment, and exit rejoicing in their ‘deliverance from an
experienced misery.’ Some 263
years after the play was written, English Law has not applied Farquhar’s
grounds for divorce in their full simplicity
In Farquhar’s time, of course, the procedure was a great deal more
cumbersome than a quick statement of mutual incompatibility and a brisk dance
off at the end of Act 5. In the 18th
century the recognized Divorce Courts were a house known as ‘Doctors’
Commons’ in the city of London, where the ecclesiastical lawyers enforced a
complicated system, founded in part by mediaeval bishops, which could, after
inordinate delays and the payment of high fees, result in a divorce a mensa et thoro—a separation from ‘bed and board’ which did
not even have the magical effect of dissolving the chains of matrimony or
allowing either partner to remarry. For
a complete divorce a vinculo it was
necessary, after the Restoration, to pass a private bill through Parliament and
up to the Royal Assent. It was
therefore no reflection on the morality of the times that the divorce rate stood
at about one a year.
In 1707 the Sullens would have had a complicated piece of legislation to
pass on their way to freedom: they
could also have been subject to a sharp term of imprisonment for refusing each
other ‘conjugal rights.’ They
were very far away from what Milton had dreamed of as divorce for
incompatibility of character, and still liable to what, in the middle of the
preceding century, he had called ‘The Bondage of the Canon Law and Other
Mistakes.’
However, in the mid-nineteenth century, a cynical but humane judge,
sentencing a bigamist, explained in detail the ecclesiastical and parliamentary
rigamarole he should have gone through before remarrying and, allowing for the
fact that it would have cost the prisoner many thousand pounds when he had only
as many pennies, sentenced him to one day’s imprisonment for the awful crime
of owning two wives. Somewhat ashamed, Parliament set up a Royal Commission in
1850, and so invented the Divorce Court. From
then on, Mr. Sullen could divorce his wife for adultery; although for her to
obtain a decree, his adultery had to be coupled with some such ‘aggravated
enormity’ as rape, sodomy, cruelty or incest.
The fact that she found his silence intolerable and he found her prating
worse was still no ground for divorce.
Nor did it become so by the next major divorce reform, Sir Alan
Herbert’s 1937 act, unless the silence and prating could have been erected, by
the evidence of solemn psychiatrists as to the total breakdown of the Sullens’
health into ‘mental cruelty.’ The
mediaeval conception of guilt and the old matrimonial offences—cruelty,
adultery or desertion—remain enshrined in the 1937 act.
Mrs. Sullen’s sensible rule for the Divorce Court—‘Here all things
must move by consent, compulsion would spoil us’—was so far disregarded that
the agreement of the spouses if too blatantly obvious, was actually held a
ground for refusing a decree.
The latest change in the divorce law, due to take effect in 1971,
recognizes the principle of consent and allows a divorce if the husband and wife
have lived apart for two years and the marriage was irretrievably broken down
However, even in 1971, the Sullens’ troubles will not easily be over.
By the end of the play they have only been married fourteen months, and
the fact that it felt like fourteen years is of no legal significance.
There is also no evidence of a two year separation.
In fact any sort of final dance would still, as any reputable firm of
solicitors would advise the Sullens, be a sign of premature rejoicing.
‘Consent if mutual, saves the lawyer’s fee,’ it would no doubt be
explained to them, is the sort of wild statement to be expected from an actor, a
comic playwright, a reader of Milton and a friend of Wilks.
It has never yet been said by a lawyer.
The War Offstage
The action of The Beaux’ Stratagem takes place in the rural peace of Lichfield,
Staffordshire. But there was a
major war raging on the Continent, rumbles of which are occasionally heard in
the play. Count Bellair, for
example, is a paroled French officer captured in battle; there are many French
prisoners in the town; and it would be a hanging matter for Foigard, the soi-disant
Flemish priest, if anyone were to discover that he was really an Irishman,
treasonably serving in the French Army.
In 1700—seven years before the play was written—the king of Spain
died without having produced an heir. To
the horror of William III of England, he left all the vast possessions of the
Spanish Empire to Louis XIV’s grandson. Spain,
of course, immediately withdrew from alliance with William and went over to the
French side. War was now inevitable
between France and Spain on the one hand and the Allies (including England, the
Dutch Republic and the Holy Roman Empire) on the other.
The fighting, which broke out in 1702 and lasted for twelve years, is
known as the War of the Spanish Succession because the Allies’ main object was
to stop Louis XIV’s grandson from inheriting the Spanish Empire.
It was Marlborough’s victory at Blenheim in 1704 that ended the threat
of French domination. If France had
won the battle, Europe would have been at Louis’ mercy.
The battle of Blenheim saved the Holy Roman Empire, made the French look
ridiculous, and forced Louis to realize that sooner or later he would have to
stop fighting and leave his neighbors alone.
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