Scottish Way of Birth and Death

Divorce

Divorce, which now features prominently in the vital statistics of Britain, was less important to the Registrars General of Scotland before the Second World War.  Although the General Register Office had to keep a record of divorces, which were noted on the original marriage schedules, divorce was not discussed in the annual reports of the Registrar General until 1920, and the divorce statistics indicate why this was so.  In the decade between 1855 and 1864, the first 10 years of registration, the average number of divorces in Scotland each year was only 17.  By 1905-14, the figure had risen to an average of 222 per year, a more rapid rise than could be explained by the growth in population, but still such a small figure that the Registrar General did not think it worthy of comment.
 
During the First World War and immediately afterwards, the annual divorce rate was twice as high as in the preceding decade (an average of 458 divorces per year in 1915-24), with particularly high figures immediately after the war.  It remained fairly steady during the 1920s, but began to rise again during the 1930s, and in 1942 the figure was over 1000 for the first time.  From 1920, the Registrar General provided the divorce figures in his reports.

Although Scottish divorce law was apparently more even-handed, both between the sexes and between social classes, than the law of England, in practice divorce was difficult for social and financial reasons.  The Church of Scotland had since the Reformation accepted divorce on the grounds of adultery, and later added the grounds of desertion for more than four years.  From 1830, Scottish divorces were decided by the Court of Session, like other cases in civil law.  Both men and women could seek divorce for adultery or desertion.  This was different from the law of England, where men could divorce their wives for adultery, but women did not have the same right until 1923, unless there were other serious offences involved.  Divorce for desertion was not possible in England until 1937. 

Scottish divorces were cheaper than English ones, and were certainly not confined to the higher classes.  Very poor people could claim financial help from the Poor Law authorities if they had a good case against their spouses.  In the 1890s, it was said, a Scottish divorce could cost as little as £12.  But, as the figures show, few Scots took advantage of these apparently liberal laws.  The social stigma of divorce was strong, and even £12 was a large sum for most working people who were not paupers.  Divorce cases could be heard only in Edinburgh, which added the extra cost of travel and taking time off work to attend the court.  Until 1938 the law of Scotland did not allow divorce on the grounds of cruelty, insanity or conviction for a criminal offence, though a judicial separation might be allowed on those grounds.  From 1938, 'cruelty' was accepted as grounds for divorce, and definitions of 'cruelty' might include habitual drunkenness or criminal convictions.

In the later nineteenth century there were a number of legal disputes over whether people married in England could seek an 'easier' Scottish divorce, and for many years the English courts refused to recognize the dissolution of marriages made in England but ended in Scotland, unless the couple could prove that they were genuinely living in Scotland.  But the figures show that few took advantage of this.  Although the law gave equal rights to both sexes, in practice most divorce cases were brought by women, except during and after the World Wars, probably because in this period there were more hasty marriages, followed by servicemen divorcing unfaithful wives.

Before the Second World War, the Registrar General for Scotland was concerned with divorce mainly in individual cases that demanded his attention.  A law of 1600 forbade anyone divorced on grounds of adultery to marry the third person named in the divorce suit.  A child born to an adulterous couple would be illegitimate in Scotland, even if they had gone through a form of marriage after the divorce.  The usual way round this, if the divorcing couple agreed, was for the third party not to be named in the decree of divorce, though the courts frowned on this.  Local registrars, who often knew their communities well, were uneasy when 'guilty' couples wished to marry.  The Registrar General advised them that if the third person had not been named in the divorce case, there was nothing the registrar could do about it, and he would have to register the marriage. 

When discussing the forthcoming census of 1911, the Royal Statistical Society suggested that the 'marital status' section should include divorce as a separate category - previously, the only official states were single, married, or widowed.  The Registrar General for Scotland's representative did not think that such an addition was necessary.  He argued that divorced persons would probably not tell the truth, because of the social stigma, and that in any case, information about this small group of divorced people would not reveal anything about the much large numbers of people who were unofficially separated and living with new partners.  Divorce did not enter the census schedules until 1921, when the divorce figures were rising.