Faithless Wives and Lazy Husbands: Gender Norms in Nineteenth-Century Divorce Law
Naomi Cahn   |   2002 U. Ill. L. Rev.

The article examines the nature of marriage and the expectations of husbands and wives in nineteenth-century America by analyzing trial reports of famous nineteenth-century divorce cases. The article argues that the textured history of divorce law in the United States shows how the law has affected gendered marital roles through its regulation of divorce. While fault is no longer the focus of divorce, conformity with gendered expectations remains a central aspect of the marital dissolution legal process. In the nineteenth century, conformity benefited women; if they were the innocent spouse who had taken care of the children, the household, and their husbands, then they were protected in divorce proceedings. Nineteenth-century ideology strongly supported this gendered role of both women and wives, and there was a significant overlap between gendered and marital roles.

By the late twentieth century, those very same actions of gender conformity had very different consequences. In the nineteenth century, a woman’s highest calling was to act as a wife; this is no longer true. While gender roles and expectations, together with domestic relations laws, are changing, the realities of most women’s lives do not yet accord with these changes. Instead, the social norms for marital roles diverge from the legal norms embodied by divorce law. Examining nineteenth-century divorce illustrates the confining nature of these congruent legal and social norms, but also illustrates how contemporary divorce law has become separated from these norms. Although divorce law should not return to fault or reinforcing confining gender roles, it should respect the diverse roles of men and women within marriage. This examination of nineteenth-century divorce shows the relationship between gender roles and domestic relations law, but also shows how social norms and legal norms can reinforce, or conflict, with each other.

*Professor of Law, George Washington University Law School.