On September 20, 1792, the Legislative Assembly of the French Republic legalized divorce. This was a first in the country’s history. Under the Ancien Regime, the unshackling of partners was unthinkable–a move that would potentially crumble the foundation on which the First and Second Estates derived their power.
In his Traité du contract de mariage of 1771, the French jurist Robert-Joseph Pothier wrote :
Gross adultery on the wife’s behalf and instances of extreme spousal abuse counted as rare exceptions for separation when annulment no longer remained a possibility. In essence, marriages were immediately consummated for a reason and unless the petitioner produced testimony that might invalidate the original grounds for marriage, the couple was married until death do they part.
In cases where the law permited separation of any sort, two basic resolutions were recognized: séparation de corps et d’habitation, essentially of person/body and domicile, and less seldom, séparation de biens, or of financial accounts. Consequently, an attitude of keeping families in their conjoined states prevailed. As an additional argument against divorce, all children birthed during the marriage were rendered illegitimate upon the conclusion of formal legal proceedings. Given the need for heirs, one can easily see how this could prove problematic.
Although the Enlightenment initially sparked the divorce debate, it was the French Revolution that succeeeded in secularizing family life. Public institutions sought to invade the very private sentiments of individuals and turn them outward in service of the state. In the first gasping breaths of the nineteenth century, a backlash developed against this transparency of state and individual, but for 24 years, marriage was viewed as a covenant which could be broken as all secular affairs could be torn down and if desired, rebuilt. This resulted in 30,000 divorces between 1792 and 1803, the years when the divorce laws remained the most liberal.
The Morning after Marriage by James Gillray
In the centuries following the years wherein the divorce law of 1792 was active, married women and men were refused comparable rights to divorce until as late as 1975. 1884 saw the return of divorce in France, however limited.
Given its time, the law of 1792 was shockingly encompassing. It allowed seven instances where legal proceedings were warranted:
Conviction for crimes entailing corporal punishment or loss of civils rights;
Crimes, brutality, or grave injury inflicted by one partner on the other;
Notorious dissoluteness of morals;
Abandonment for at least two years;
Absence without news for at least five years; and,
Emigration (when taken as a sign of counterrevolutionary intentions.” 1
Note the oldest reason for marital dissolution–adultery–is nowhere to be found.
Increasingly, as the idealism of the French Revolution waned, restrictions were placed on the grounds warranting a divorce. The Napoleonic Civil Code modified accessibilty to divorce, making it more difficult for a wife to leave her husband, as during the 1792 law, men and women enjoyed equal freedom to seek their happiness outside of marriage. Instead of relying on grievances, Napoleon’s code initially proposed mutual incompatibility (later discarded) and/or mutual consent. Smacks of his experience with Josephine, doesn’t it? The formal reasons for divorce written in the final code were: “adultery, infamous punishment of spouse, outrageous conduct, ill-usage, or grievous injury.”
If the history of divorce law during the French Revolution and/or the social circumstances warranting divorce interest you, there is a good wealth of literature out there, particularly in regard to a wife’s grievances. Do see:
Marriage and Domestic Violence in Eighteenth-Century French Literature and Society: (This is actually a syllabus from Illinois State University, but it has a useful bibliography attached if you scroll 1/3rd of the way down).
A selection of writings from Husbands, Wives, and Lovers: Marriage and Its Discontents in Nineteenth-Century France: Disregard the nineteenth century bit; it talks mostly about the French Revolution.
Works Cited for the Seven Grounds for Divorce
1 Aries, Philippe, and Georges Duby. “The Unstable Boundaries of the French Revolution.” A History of Private Life. Cambridge, MA: Belknap of Harvard UP, 1990. Print.