Basics on divorce
Australia
Legislation on divorce - including the grounds for divorce - varied from state to state until the Commonwealth Matrimonial Causes Act 1959 came into effect on 1 February 1961.
People who presented to the divorce courts may have been married 1 year or 30 years, may have been city-based or country-based and may have been of any religious persuasion. While divorce was not a common occurrence in the nineteenth century, researchers should not ignore it as a possibility in their family history. In particular, families may have lied or otherwise covered up what they considered was the shame of a divorce, just as many formerly covered up or falsified evidence about convict ancestry.
New South Wales
Divorce began in New South Wales in 1873. Hilary Golder's book Divorce in nineteenth century New South Wales (SAG ref: B3/30/9) details the background to the establishment of the divorce jurisdiction and the grounds for divorce. Legislation amending the grounds and the legal procedures that affected them was enacted in 1881, 1884, 1892, 1893 and consolidated into the Matrimonial Causes Act, 1899.
Every divorce required two decrees:
- the decree nisi, a conditional decree which was granted after the judge had heard evidence in Court and was satisfied that
- the couple had been legally married
- there were valid grounds for divorce
- the Supreme Court of New South Wales had jurisdiction
- there was no collusion between the parties to effect a divorce
- the decree absolute, which was granted generally between 3 and 6 months later
Between the granting of the decree nisi and the decree absolute the couple was still married. During that time, if information was provided to the Court that called into question any of the evidence, then the decree nisi could be rescinded and the decree absolute would not be granted.
Records of Divorce
The process of divorce produced many records: the decrees themselves; evidence of the serving of the decrees on the relevant parties; the statements of witnesses, affidavits by the petitioner (the 'innocent' party) and the respondent (the 'guilty' party) etc. Some of these records may be available to researchers.
- Copy of the marriage certificate: When a marriage is dissolved the original registry in Australia where that marriage took place was notified of the details of the dissolution. In the case of New South Wales a notation was made on the original marriage record. If you suspect a couple was divorced in NSW and they were married in NSW, apply for a copy of the original marriage certificate.
These notations ceased at the end of 1983. See Nick Vine Hall's Tracing your family history in Australia: a guide to sources for more details of the notations on certificates and reciprocal arrangements with some overseas countries (SAG ref: A2/10/3) - Divorce Records: Refer to State Records, which now holds many of the records relating to divorce in NSW. There is an online index to divorces and also an Archives In Brief on the subject.
Other Australian states
Records are likely to be held with the State archives in each state of Australia. Check its website to see if they have any online indexes or guides on this subject available.
Britain
The Matrimonial Causes Act 1857 led to the creation on 1 January 1858 of a Court for Divorce and Matrimonial Causes. Prior to this there were five main methods by which partners could be separated in unsatisfactory marriages:
- Private Separation
- Desertion and Elopement
- Wife sale
- Judicial separation by ecclesiastical courts
- Full divorce by Act of Parliament
The National Archives has an Information Leaflet #43 Divorce Records before 1858 which provides full descriptions of each of these methods and the relevant records held.
The Court for Divorce and Matrimonial Causes took over the jurisdiction for matrimonial affairs from the church courts in 1858 and was empowered to deal with child custody, maintenance and alimony.
Information leaflet #44 Divorce Records after 1858 describes divorce legislation 1857-1939, divorce records 1858-1943, divorce records after 1943 and divorce in Ireland.
How SAG can help you
SAG holds an Index to divorces in the 'Times', London, 1788-1910 (as listed in Palmer's Indexes to the 'Times') on microfiche. [SAG ref: UK-DIR-DIV:1]. It contains the surname of the parties; the surname of any co-respondents; the quarter; year and Palmer's reference to the Times. SAG does not hold copies of the relevant newspapers, but access is available online through the SLNSW.
There are several useful reference books in our collection:
- For background history on marriage laws see Marriage laws, rites, records & customs: was your ancestor really married? by Colin R Chapman [SAG ref: M2/10/70]
- For information on divorce via an act of parliament see Guide to the records of parliament by Maurice F Bond [SAG ref: M2/11/3]
- For information on the work of the ecclesiastical courts see Church Court records: an introduction for family and local historians by Ann Tarver. [SAG ref: M2/10/59]