For a brief period at the end of the 18th century, France had the most liberal divorce laws in Europe. Before a conservative backlash brought it down, the legislation allowed thousands of couples to leave marriages for no other reason than wanting to – and became a touchstone for opponents and supporters of divorce alike.
When France first legalised divorce on 20 September, 1792, it was revolution at its most intimate.
The French Revolution had begun three years earlier and was overhauling customs that had been accepted for centuries. In 1791, France’s first constitution wrested marriage out of the hands of the Catholic Church and put it into the state’s remit, defining it as a civil contract.
The right to break that contract came the following year, when legislators passed the country’s first divorce bill.
“The right to divorce stems from individual freedom,” the text read, “which would be lost if one were bound unbreakably.”
Until then, couples in France could only separate, enabling them to live apart but not remarry. And while a handful of Protestant countries allowed divorce, obtaining one relied on proving a spouse had committed a serious offence – typically adultery or desertion.
France’s new law differed by introducing several more grounds for divorce – ranging from absence to abuse, insanity to fleeing revolutionary France – and crucially, offering couples the chance to split in the absence of any specific fault.
Spouses could divorce by mutual consent, or one partner could request it unilaterally on the simple basis of “incompatibility”. The rules applied equally to husbands and wives.
“The 1792 divorce law was very, very liberal – actually liberal in today’s terms, but certainly in terms of the late 18th century, there was nothing like it in Europe,” says Roderick Phillips, a historian who has studied divorce in France and beyond.
A family matter
The procedure for filing for divorce was similarly radical.
Part of the revolutionaries’ project was to make household disputes a matter for families, not lawyers, to resolve. Divorce was decided by relatives or friends appointed by the couple – three for each spouse – who formed a kind of family court.
Their role was either to try and reconcile the partners, if they were divorcing by mutual consent or for incompatibility, or otherwise to hear the evidence that one was at fault.
These family members would decide together whether divorce should be granted, as well as custody arrangements, the division of property and whether child support or alimony was due. Then a judge made it official.
The process could take anywhere from a month to a year or more.
At the same time in England, the only way to obtain a divorce was to persuade parliament to pass a private act. In contrast, the French procedure made divorce relatively discreet, as well as accessible.
The law catches up
At first, it looked like legalising divorce had opened the floodgates.
Around 38,000 to 50,000 divorces took place in France in the 11 years after the law passed, according to historian Suzanne Desan, but rates peaked soon after it took effect in 1793-95.
Phillips, who examined records in the city of Rouen, points out that in many early cases, the law was just catching up to the facts.
“For example, the very first divorce in Rouen, just a couple of weeks after the divorce law was passed, was a woman who divorced her husband because he’d been absent. This is 1792. He’d been absent since 1763,” he says.
The man had left for war and never returned or sent news again, leaving his wife in legal limbo. Two days after her divorce was granted, she married a man who was living at her address. “So she's obviously been in a relationship with somebody for, who knows, years, decades possibly.”
Once de facto break-ups had been converted, the rate levelled off. Couples most often opted for no-fault divorces, which were usually the simplest to claim.
In Rouen, the records show people divorcing were more likely to be live in urban areas and perform skilled work, conditions that would make it easier to live independently. They tended to have married slightly younger and were more likely not to have children.
“Otherwise,” Phillips says, “they seem to be fairly a fairly ordinary, straightforward cross-section of the population.”
Revolution at home
One striking trend did emerge: across France, most divorces were initiated by women.
“In Rouen, for example, over 76 petitions of the petitions for divorce were filed by women. And that’s true in every big city except for Toulouse, where it’s only 66 percent,” says Phillips.
As parliament debated the law, lawmakers repeatedly made the case that divorce would redress injustice faced by women in particular.
The divorce law was a piece of legislation of the era that reformed property rights and increased punishments for violence against women, Phillips says, and which formed part of a broader project to “remake the family in the image of the revolution”.
“There’s a sense that in the family with the father at the head and a great deal of power invested in the father and the husband, the father was a kind of king in his little kingdom. And it was time to get rid of that king as well. And to create a republic – a republic in the family with equality, fraternity and so on.”
In late 1793, a year into France’s new rules, a woman stood before legislators brandishing her wedding ring. She wanted to present it to the nation, she told them, in honour of the “holy law of divorce” that had allowed her to break free of an unhappy marriage.
“The day is purer,” she said. “I taste freedom without constraints.”
Conservative backlash
Such freedom horrified conservatives, who wrung their hands over the high numbers of early divorces and warned that reform would unravel the fabric of society itself.
“Divorce in the French Revolution became a fixation for conservatives,” says Phillips. “They were convinced that divorce just showed how bad the French Revolution was. ‘Yes, executions and the Terror and all of that. But divorce? Oh my God. See what they did to the fabric of France and to the family and to social order’, that kind of thing.”
The conditions for divorce were duly restricted in the new Civil Code introduced under Napoleon in 1804, which notably required wives to prove that adulterous husbands had betrayed them in the marital home itself. Women found to have committed adultery, meanwhile, faced a prison sentence of up to two years.
In 1816, with the monarchy restored and the Church reclaiming its influence, divorce was abolished altogether.
Nearly 70 years would pass before France reinstated it. When it did, in 1884, divorce was only allowed in the case of serious fault.
It wasn’t until 1975, when French society was in the midst of another revolution, that couples would once again be able to divorce simply because they weren’t happy – the same right people nearly 200 years before them had enjoyed.
Although short-lived, according to Phillips France’s first divorce law became a model for progressives, and a cautionary tale for reactionaries.
“Right through the 19th century and even the 20th century, not only in France, but in other places, people argued against liberalising divorce by pointing to what happened during the French Revolution,” he says.
“They say, ‘oh, people just got divorced whenever they wanted to. Husbands got married, divorced, married, divorced, married, divorced...’ Mischaracterisations of what happened became this point of reference for conservatives and for the Church when it came to divorce.”
In contrast, when Portugal introduced divorce in 1910 and Spain in 1932, both adopted France’s revolutionary example.
“So it was a model for people on the left wing. And then something that people on the right wing tended to point to as something that should be avoided at all costs,” Phillips says. “For well over a hundred years afterwards, it was something that was quite iconic.”
Listen to this story on the Spotlight on France podcast, episode 150.
