Well-Behaved Women Don’t Make History: Rethinking Family, Law, and History

Abstract

In this article, I focus on three principal claims. The first is that in the transition from the rules of coverture to the newly emerging family law of the 1858 Divorce and Matrimonial Causes Court, the debilitating effects of coverture remained. Women were forced to conform to narrow roles of traditional passive womanhood, and the rights to civil divorce did not enable these nineteenth-century litigants to control their futures in any meaningful way. The second is that the issues and prejudices of the period naturally formed the core assumptions and relationships that continue to define family law. Because the focus in the nineteenth century was on the heterosexual couple, and control over their children and their property, the family law of today remains mired in that model. For that reason, such important “family” issues as health care, homelessness, child abuse, and a living wage are not considered central family law issues and the values of family law do not prevail in these areas. Instead, the model of fault, marital breach, and male rights in women’s chastity remain central despite the move to no-fault divorce and greater domestic rights. Third, historians and scholars have generally applauded the enterprise of family law as being good for women, as protecting their important interests in the domestic sphere, and as being liberalizing for women outside that sphere. I challenge this liberalization narrative for obscuring the role family law plays in the perpetuation of gender inequality and separate spheres. I argue that family law is not only not liberating, but it is constraining and limiting for women in the nineteenth century and today who wanted legal rights, rights that are the currency of the public sphere. My arguments are supported by extensive empirical data from my research into the 19th-century divorce court records.

Keywords: English Legal History, Family Law, Feminist Legal History, Gender and the Law, Child Custody, Divorce, Coverture