The government’s current consultation (closing on 10 December) about making ‘no fault’ divorce quicker and easier might have drawn a robust contribution from the famous seventeenth-century poet and polemicist John Milton, if he were alive today. From 1643 to 1645, in the midst of the English Civil War, Milton published a series of works urgently pleading for the introduction of divorce on the grounds of incompatibility. The nature of marriage was evidently an abiding concern for him, as the complex relationship between Adam and Eve is also at the core of his masterpiece Paradise Lost, first published in 1667.
The case which has inspired the current debate about divorce reform is that of Tini Owens, whose husband is refusing a divorce even though the couple are separated. Since she was unable to prove unreasonable behaviour on his part, she will have to wait until they have been separated for five years for the divorce to go through. Even when both parties do agree to divorce, under the 1973 Matrimonial Causes Act they have to wait for two years if they want to avoid attributing fault to either partner. Tini Owens’ plight has given ammunition to those arguing for a less damaging and acrimonious way for marriages to end.
Tini Owens has been described as ‘trapped’ in a loveless marriage. John Milton knew the feeling well. Contrary to modern misconceptions about pre-modern marriage, marriage partners in early modern England were likely to be close in age and to marry around their mid-twenties, once they had the resources to establish a household. Milton, however, went against the grain, marrying the seventeen-year-old Mary Powell when he was 33, just as the country stood on the brink of civil war and revolution in 1642. He quickly regretted his decision. Within a few weeks, his young wife had deserted Milton and gone back to her family, leaving him hankering for a more suitable marriage but unable to obtain a divorce.
Even though separation in early modern England might be approved by the church courts on the basis of adultery or some other causes, actual divorce allowing remarriage could only be granted by parliament, making it exceptionally rare. But the revolutionary context of the 1640s gave Milton hope. Already a supporter in print of parliament’s attack on the allegedly ‘popish’ church of Charles I and his bishops, Milton now launched into print again, arguing that England should follow the precedent of continental Protestant reformers, who had introduced new divorce laws; the struggle for divorce – which Milton took up single-handed, and which was met with enormous hostility – was, in his view, a logical part of the struggle against authoritarian ‘popery’.
Milton’s arguments do have something in common with modern justifications for no-fault divorce. He presented an elevated picture of intellectual and spiritual companionship between husband and wife, and argued that incompatibility in personality thus undermined the God-given purpose of marriage even more than sexual incompatibility or infertility. Much of his rhetoric implied that this personal incompatibility was simply a matter of unalterable character traits, a ‘disposition’ which one might not fully discover until after marriage. This would then lead to a ‘powerful reluctance and recoile of nature on either side’, meaning that ‘their mutuall society’ would lack contentment. It was wrong, through denying divorce, to ‘force a mixture of minds which cannot unite, & to sowe the furrow of mans nativity with seed of two incoherent and uncombining dispositions’.
But would Milton have supported Tini Owens’ case? That, I think, would rather depend on what he made of her husband. Although he advertised on the title page of his Doctrine and Discipline of Divorce that the restoration (on Old Testament precedents) of divorce would be for ‘the good of both sexes’, his treatment of divorce was far from egalitarian. Milton’s overwhelming concern was for ‘the distresses and extremities of an ill wedded man’, not for the plight of an ill-wedded woman. What is more, in a later work he depicted the unhappily married man’s plight as a kind of servitude – and, as he explained, a particularly harsh kind of servitude: slavery to an inferior.
Milton argued that it was the head of the household – the married man – who held the power to adjudicate divorce himself as a ‘domestick prerogative’, leaving the law only to ‘take care that the conditions of divorce be not injurious.’ The man, then, was judge in his own case. The woman might consent to be divorced, or she might not. Milton’s only answer to that was to say that the unwillingly divorced wife was either in the wrong, and therefore deserved it; or that if she was in fact wronged by this unwanted divorce, she was well rid of such a husband.
Milton did recognise that there were worthy and wronged wives – wives, in fact, who were superior to their husbands. In such cases, the wife might even govern her husband – at least, so long as the husband should ‘contentedly yeeld’. If a woman’s inferior husband were godless or brutal, Milton suggested that the law should respect ‘the womans just appeal against wrong, and servitude’. But he didn’t explain exactly how such a divorce could be achieved without the consent of the man who routinely, in his view, held this prerogative of divorce. Indeed, when he talked about consent to divorce, he talked either about the consent of both parties, or of the husband only. The husband had a ‘right above the woman’ which enabled him to divorce a woman against her will, but potentially also enabled him to remain married to an unwilling wife.
Milton’s arguments for divorce were tied up not only with his own situation, but with his thinking about politics and the civil war. His writings developed later into support for the execution of Charles I, and denunciation of the spirit of any citizens who would prefer, like ‘babies’, to entrust themselves to the rule of a king when they were perfectly capable of governing themselves in a republic. These capable male citizens must also be capable of ruling their own households. And if they could rid themselves of an unwanted king, they could also free themselves from domestic slavery by divorcing an incompatible wife.
Modern divorce law is thankfully more egalitarian than Milton’s proposals, and the advent of same-sex marriage (and hence same-sex divorce) can only reinforce the principle of a neutral treatment of the circumstances of both partners. Yet for all the historical specificity and – to modern sensibilities – unappealing chauvinism of Milton’s polemics, we do glimpse the pain of his failed marriage. In the seventeenth century, as today, negotiating or evading the legalities of divorce could evidently bring additional layers of distress to the process of separation. Milton’s objective of a virtually unilateral right of divorce residing in the husband might have remedied some men’s distress at the expense of wives’ feelings. The current consultation, on the other hand, may make progress in allowing ill-matched couples to separate in as painless a way as possible on both sides.