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Drawing on E.P. Thompson's analysis of the resort to law of those viewed in histories 'from above' as powerless, this discussion of the implemenation of South Australia's Matrimonial Causes Act 1858 argues that the historiography to
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      Citation:Bridget Brooklyn, Nothing to Lose: Women and Divorce inSouth Australia 1859-1918, 8 Law Context: A Socio-LegalJ. 70 (1990) Provided by: Western Sydney UniversityContent downloaded/printed from HeinOnline  Mon Feb 4 21:56:25 2019-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at https://heinonline.org/HOL/License-- The search text of this PDF is generated from uncorrected OCR text.-- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: Copyright Information   Use QR Code reader to send PDF to your smartphone or tablet device  Nothing to Lose: Women n Divorce in South Australia 1859 1918  ridget rooklyn Introduction The idea that disparities of power within a society are reflected in the laws of that society forms the basis of many historical accounts of particular laws. Such analyses, however, often oversimplify by divid-ing historical subjects into two somewhat amorphous entities. On theone hand there is the law and the powerful people it represents and on the other there is the rest of society denied, by and large, access to the law. For example, James (1980) sees nineteenth century legislationpassed to increase the protection of women in marriage as 'paternalis- tic' and therefore reinforcing the disparity of power between men and women. Phillips (1979:555) goes so far as to argue that the social- historical study of laws which discriminate in the access granted to men and women respectively is 'pointless', thus arguing that such lawsare so powerful that they render their subjects virtually inaccessible to the social historian. Such analyses perceive a society and its laws to be separated in a way which does not allow the one to influence the other, so that power is seen as an indivisible preserve of the sector whose interests are represented in the law. Such conclusions are unsurprising, given that laws often do represent the interests or reflect the preoccupations of a few. The ritualised theatre which E. P. Thompson describes as part of the 'elaborate hegemonic style' of the eighteenth century English ruling class (1974:389) has contributed to our picture of the law as part of a larger, all-pervasive hegemony. Thompson's vivid descriptions of the drama of the courtroom andits capacity to terrorise are offset, however, by his exploration of the extent to which this terror was effective. His specific references to a 'countertheatre' of plebeian action (1976:396) form part of his analy- sis of the law within societies in general (see, for example, Thompson's conclusions, 1975). The effect of his argument is to challenge the  Nothing to Lose assumption that laws only serve the interests of the powerful. His conception of the law as a usable tool prompts us to look at how laws are used in societies other than that of eighteenth century England.Divorce law provides a particularly interesting comparison because accuser and accused are not divided by inter-class loyalties, but by conflict engendered in the marriage relationship, that symbol of unity, harmony and social order. Nevertheless, it still highlights some impor- tant aspects of the power relations operating between the law and its users. The users I will focus upon are women, through the examina- tion of South Australian divorce.The South Australian Matrimonial Causes Act granted divorce to husbands on the single ground of adultery but to wives only when adultery was combined with another marital fault, usually cruelty and/or desertion. Judicial separation was permitted for both husbands and wives for a number of marital faults, but did not allow the right of remarriage. Although South Australia was the first Australian colonyto respond to the Colonial Office's invitation to copy the English Divorce and Matrimonial Causes Act 1857 (Broun 1968 c), by passing its Matrimonial Causes Act in 1858, the Act was not amended apart from a consolidation in 1867 until 1918, when equal access to the single ground of adultery was granted to wives. The other colonies enacted divorce laws soon after South Australia, with the exception of New South Wales (which did not get its first divorce Act until 1871). Most of these other colonial laws, however, underwentsubstantial amendments affecting the available grounds for divorcewithin twenty-five years of coming into being. The only colonycomparable to South Australia was Queensland, where the first divorce Act, passed in 1864, had no major amendment until 1923.South Australian divorce law offers the opportunity to study changes over time in the resort to divorce, without the intervention of legisla- tive change, for a sixty-year period. Divorce and the Good Wife There are perhaps few more appropriate places to look than divorcerecords to uncover atrocities committed by men upon women, wherebrutality and neglect are fostered by the protection of male privilege. Yet the analysis of South Australian divorce cases shows that some challenges to patriarchal authority were permissible. Under whatconditions were they successful? Were these conditions dictated by practitioners of the legal system, or could women themselves bring them about? The wife who successfully petitioned against her husband was often the classic 'good wife', as seen in the case of Lott v Lott, a petition for dissolution of marriage on the grounds of adultery and cruelty, heard in 1877. In evidence, Frances Lott is repeatedly charac- terised as victim to William Lott's persecutor. Describing an incident in April 1874 in which the respondent jumped on her while she was in an advanced state of pregnancy, Mrs Lott testified that the assault was  Bridget Brooklyn 'entirely unprovoked'. This image of defencelessness was further embellished by a witness's account: Mrs. Lott's behaviour was very submissive. She seemed only glad if she could get out of the room without receiving a blow. There was nothing atall in her conduct to justify this treatment. She worked from 6 in themorning till 12 at night. William Lott was clearly a thorough barbarian, and it can hardly have been a surprise to those present in Court when Chief Justice Waydeemed it 'one of the most glaring and brutal cases he had ever known' and pronounced the charges abundantly proved (Register 23 June 1877; 25 June 1877). The evidence in Lott establishes two things: that the marital faults charged did take place, and that the wife did not by her own actions invite the committing of them. But it establishes more than this. Not only did the petitioner claim extreme and almost daily violence over about ten years, but she mentioned ways in which she had responded to this treatment. She had left her husband twice before her final departure but had returned on his promise of good behaviour. The effect of her natural timidity was increased by the weak condition in which her husband's cruelty left her. Her weakness did not prevent her, however, from giving voice to her sense of propriety in remon- strating with her husband over his public displays of intimacy with one Miss Hebblewhite (P.R.O.S.A. G.R.G. 36, Series 23, No.3 11). All in all, the evidence reads as much as a panegyric to Mrs Lott as a proof of her charges. Her entitlement to relief was based not only on the truth of her claims, but on her own behaviour as a wife. The consequences of a wife's courtroom demeanour are amply demonstrated in the hearing of Heylen v Heylen, reported by the Register in 1879. This was a petition for judicial separation on the ground of cruelty, and the Register found some of the details of theallegations so disgusting as to be 'unfit for publication'. Ann Heylen stated that on the occasion referred to above, her shopkeeper husband had punched her repeatedly in the face and then made her look at thedamage he had done. He had beaten her not once, but continuallyduring their marriage. He had once been fined in the Police Court for assaulting her, and was ordered to pay her separate maintenance, which he failed to do, and on her renewal of proceedings he begged her to return to him, which she did. He had also neglected her during illness by repeatedly refusing her medical aid. Under cross-examination, Mrs Heylen was called upon to verify that she '[niever used opprobrious language or swore at [her hus- band]'. Elaborating on her own part in the domestic conflict, she admitted to having thrown a pomatum pot at her husband 'because he said something disgusting to me and called me a horse, a cow, a pig, and a goat before my children'. In the quarrel which precipitated the court action the respondent, according to Mrs Heylen, 'threatened to knock my head off if I did not mind what I was about, and I  Nothing to Lose afterwards left the house altogether. I left because I was afraid of him' (Register 16 August 1879, Supplement). The respondent's reply to his wife's petition charged both condonation and provocation of the cruelty. Proof of condonation was one of the 'grey' areas of the Matrimonial Causes Act because although condonation had forgive- ness as 'an essential element' (Osborn 1976:87), this forgiveness did not have to be expressed verbally, and therefore could be implied incontinued cohabitation (see, for example, Black 1979:267-8). This is the sense in which condonation was most commonly interpreted in hearings under the Matrimonial Causes Act. Provocation was not laid down in the Act as a possible bar to a decree, but it was subject to judicial discretion. Biggs summarises the case law on this matter as supporting the doctrine that, '[e]xcept with regard to those acts which are so severe that no degree of provocation can excuse them, conduct cannot be complained of when it results from normal retaliation to unjustifiable actions' (Biggs 1962:149). Justice Boucaut's directions to the jury in Heylen were that thecruelty had been proved, but that it had been condoned. He left the question of provocation open to the jury, but stated that 'it wasimpossible for him to shut his eyes to the conduct of the petitioner, as being in his opinion sufficient to cause provocation'. Not surprisingly, the jury found that Mrs Heylen had provoked her husband's cruelty (Register 16 August 1879, Supplement). The evidence in favour of the petitioner was thus regarded as insubstantial, not because it did not establish cruelty, but because it did not refute provocation, leaving the impression that a wife could only obtain relief if she presented herself as both passive victim of cruelty and an active champion of virtue. It would be misleading to stop here, however, and interpret theSouth Australian judiciary's approach to female litigants as constitut- ing a simple plan to reward the virtuous and punish those deemed vicious. In the case of Sweetapple v Sweetapple, which began hearing in 1903, a wife's 'good behaviour' actually worked against her. Florence Julia Sweetapple, the petitioner, was descended from the families of Major O'Halloran and Dr Woodforde, described by theChief Justice, Sir Samuel Way, in his judgment in the case as 'two old colonists, whose names were highly honoured in the early history ofthe state'. Her husband, Dr Herbert Algar Sweetapple, was a well- respected medical practitioner in Adelaide. Sir Samuel Way, in his judgment, drew attention to the public aspects of the relationship in arguing for the return to cohabitation: I think that until Mrs. Sweetapple left her husband's home on December 2, 1902, there were very few persons in the outside world who did not regard their marriage as a happy one .   . Dr. Sweetapple was a man whose life appears to have been centred in his home and his practice ... The doctor appears to have been equally fortunate in his wife ... There was no imputation of extravagance against her. She acted, not merely as a mother to the children, but also as a nursemaid up to when the second child was expected. She ... waited for her husband when he came in at 8 o'clock in
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