A Mother's Lack Of Parental Rights
Updated: May 4, 2022
By Michelle Ray, author of There You Were
In There You Were, my reimagining of Pride & Prejudice, young Elizabeth grows up without a mother. She believes Mrs Bennet is dead (you have to read the book to find out why), but it turns out that her mother abandoned the family due to marital strife. Why, you might ask, would Lizzy and Jane not have gone with Mrs Bennet to London? It would have been against the law. As Mrs Bennet explains in There You Were, “A man keeps his children.” Had she run off with her girls, Mrs Bennet would have been imprisoned for theft, for the children were Mr Bennet’s property. Even if Mr Bennet had died, he could have left the children to anyone but his wife, had he chosen to do so.
“Wait, what?” you might be asking. “Why do Mr and Mrs Bennet separate? They are not a perfect match in P&P, but surely they stay together!” Dear reader, you must explore my version for that answer. “Why could she not keep her children?” Let us delve into history for that one.
Many of us are familiar with that dirty dog/wife-killer Henry VIII, who attempted to get the pope to annul his marriage to Catherine of Aragon since she did not produce a male heir. (I recommend the highly entertaining Broadway/West End show The Six for a clever, lively take on his wives’ stories). Henry created the Church of England after breaking with Rome, and some think that Anne Boleyn (wife #2) was responsible for a flurry of subsequent divorces.
No, no. As it says in Smithsonianmag.com:
“The term was [divorce] not even used again until 1670… The Church of England’s resistance to divorce was so strong that the only route to a divorce was via an act of Parliament. Not surprisingly, few people had the means or inclination to expose their private unhappiness to the press, the public and 800-odd politicians. When a divorce law was finally enacted in 1857, and the ‘floodgates’ were opened, the number of divorces in English history stood at a mere 324. Only four of the 324 cases were brought by women. A husband needed to prove adultery to obtain a divorce. By contrast, a wife was required to prove adultery and some other especially aggravating circumstance to have the same grounds.”
Even with this, usually a woman was out of luck. Would it help to claim desertion? No. Violence in the home? No. Rape. Sorry, no. Financial challenges? No way. Until Jane Addison successfully brought a case for divorce to Parliament in 1801, a woman could only hope for a legal separation. And get this: “She was still required to be obedient to her husband and chaste.”
As for Mrs Bennet, whether she was legally or de facto separated, she would lose custody of her children. In the mid-1700s, English jurist William Blackstone wrote: “A mother, as such, is entitled to no power, but only to reverence and respect; the power of a father, I say, over the persons of his children ceases at the age of twenty-one: Yet til that age arrives, this empire of the father continues even after his death; For he may by his will appointed Guardian to his children.”
So what changed? Credit goes to 1839’s Custody of Infants Act. The bill was championed by author and social reformer Caroline Norton, who had left her husband in 1836 and began campaigning to change the law to allow non-adulterous mothers to retain custody of children under the age of seven and to have access to older children. The bill won, though the Lord Chancellor had to agree to each case, and the woman had to be of ‘good character’. Further changes came with The Infant Custody Act of 1873, which focused on the needs of the children, and the Matrimonial Causes Act of 1878, which allowed women to get an order of protection from a magistrate. This allowed the separation of women from violent husbands, and for children to stay with their mothers. These petitions were expensive, leaving many working class women unable to pursue custody of their children in this way.
As the old Virginia Slims cigarette ad went, “You’ve come a long way, baby.” Much has changed, and while no one enters marriage desiring separation or divorce, at least today it is an option. As for Mrs Bennet, well, have some sympathy for her. Or not.