Well-Behaved Women Don\u27t Make History : Rethinking English Family, Law, and History

In 1857 Parliament finally succumbed to public and political pressure and passed a bill creating a domestic relations court: the Court for Divorce and Matrimonial Causes. This new court for the first time in common-law history, combined the following jurisdictions: the ecclesiastical court\u27s jurisdiction over marital validity and separation; the Chancery court\u27s jurisdiction over child custody and equitable estates; the common-law court\u27s jurisdiction over property; and Parliament\u27s jurisdiction over divorce and marital settlements. Wives were given the legal right to seek a divorce or judicial separation in a court of law, receive custody of the children of the marriage, and were allowed an order granting them independent property rights. Divorce could now be granted in a single civil court and the costs would be substantially less than a Parliamentary divorce. Such action gave wives almost the same rights as husbands before the new judge. This article combines empirical data from the first decade of the 1858 divorce court with a theoretical critique of the reform of family law all in the context of the historical reform movement. It explores the different kinds of arguments that existed for reform of the law of divorce, child custody, and married women\u27s property. These nineteenth-century critiques framed the reform debate of the 1850s and established the parameters within which civil divorce would occur. The article turns to empirical data from the records of the court\u27s first nine years to explore the extent to which the legal reform answered these stated needs of progressive reformers or frustrated the desires of female petitioners. The data reveal some limited improvement as well as great continuity in women\u27s subordination within the family. With the evidence of the court\u27s performance, the article then challenges the historical claims that the shift from coverture to family law benefited women. In discussing the liberalization narrative that posits family law as good for women, the article examines the reform debate and the reform itself as establishing a narrative of law\u27s innocence in the subordination of women. Professor Wright concludes by suggesting possible implications of the narrative of law\u27s innocence in contemporary family law and the lives of men and women today