While divorce was not impossible under English law, it was almost unheard of in the Southern colonies. Physical separation was possible for wealthy women who could appeal to the courts for separate maintenance by their husbands in cases of abuse or neglect. In 1681, William Fitzhugh sought a legal separation for his abused sister-in-law, Rose Blackston. The separation was denied, and she eventually eloped with another man in 1697. Poor women were dependent on their family or friends for help, although sheltering a runaway wife was grounds for punishment.
Divorce was also almost nonexistent among the Quakers and the various European Protestant sects living in the Mid-Atlantic colonies. Settlers in the backcountry colonies, where formal marriages were less common, were more likely to desert a bad marriage, provided that it was financially possible. In contrast, divorce under certain conditions was allowable in the colonies of Connecticut, Massachusetts, and Rhode Island. A married person seeking divorce had to be able to clearly prove willful desertion, adultery, bigamy, or impotence to a court of law.
Bigamy and desertion were relatively easy to prove, and most successful divorce cases involved either situation. Desertion was defined as three years of neglect of duty or seven years’ absence. In 1680, Elizabeth Wade Stevens successfully demonstrated that her husband, Thomas Stevens, already had wives in Boston, England, and Barbados. She was given a divorce and granted the right to marry again. A common penalty for divorce was to require that neither party marry again.
Demonstrating adultery or impotence as grounds for divorce required personal testimony and so was much harder to prove. Martha and John Hewitt of Plymouth Colony were married in 1667. Shortly afterwards, it became evident that Martha Hewitt was four or five months pregnant. Faced with fornication charges, John Hewitt refused to acknowledge paternity. Circumstantial evidence suggested that Martha Hewitt’s father, Christopher Winter, was the father of the child. In March of 1668, Martha Hewitt and Winter were brought to court in Plymouth County on an incest charge. Citing lack of concrete evidence, the case against Winter was dropped, and his daughter was whipped for fornication before marriage. In June of 1669, John Hewitt attempted to divorce his wife Martha on grounds of adultery. As the charge against her father had never been conclusively proven, the divorce suit was turned down.
Following a rejected divorce suit, Massachusetts colonists had the same options as their counterparts in the other colonies. Wealthier colonists could set up separate households in one form or another. Desertion was another possibility, leaving the other spouse to appeal again for divorce after the required seven years waiting period. Most, like John and Martha Hewitt, were left to make the best of a bad situation. In nearly all cases of separation or divorce between European colonists, the husband maintained ownership of land and house and was given custody of the children.
As formal marriages were rare between African Americans, divorce usually consisted of the couple simply agreeing to separate. A couple also might be parted because one member had been sold to a different plantation. Most Native American tribes allowed for divorce as a means of maintaining stability within the tribe. The couple quietly agreed to separate, and their lives continued without penalty. As the United States became a country, both African Americans and Native Americans became more subject to marital codes and practices based on European laws and traditions.
Abigail B. Chandler See also: Child Rearing; Children; Family; Inheritance; Sex; Widows and Widowers. Bibliography Calloway, Colin G. First Peoples. Boston: Bedford/St. Martin’s, 1999. Cott, Nancy. Public Vows: A History of Marriage and the Nation. Cambridge, MA: Harvard University Press, 2000. Fischer, David Hackett. Albion’s Seed. New York: Oxford University Press, 1989.