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Marriage and Divorce at the Cape

Introduction
Have you ever thought why the colonial authorities of the Cape required that the information from all the marriages at the Cape had to be forwarded to them?  Why not also collect birth information from the church’s baptisms records?  Agreed, they did collect Death Notices which us genealogists are thankful for, but these tended to be those with Wills and Estates and not all the Cape Colony citizens who died.

Baptisms
The collection of Baptism records – as happened with the Bishops’ Transcripts1 in the UK – would have been a way of keeping a record of births here in the Cape.  We do need to compare the administration/demographic differences between the Cape and England and Wales.  In England they have what is called the National Church or Established Church i.e. the Church of England (CE).  They had initially the sole right to baptise, marry and bury the dead – the famous BMDs, us genealogists thrive on.  At the Cape after the British occupation in 1806 and even after 1814 when it became a solely British Colony, the majority of the population did not belong to the CE – in fact besides a few Colonial Chaplains there were no CE bishops or ministers here.  The majority of people belonged to the Dutch Reformed Church, and through the slaves and their descendants, those freed and still in chains, there were also many followers of the Islamic faith.  We also must not forget the indigenous people who might not belong to any of the typical faiths encountered by the Colonial administration and thus “Baptism” would be a poor way of registering births in the Colony.

That no Established Church was recognised by law here at the Cape was proved by certain court cases that occurred, in particular Long vs The Lord Bishop of Cape Town which went through numerous levels of the justice system right up to an appeal to the Privy Council in London whose ruling was that all churches were voluntary organisations and therefore could not be used by the state to carry out its role and functions and vice versa.2 In relation to Baptism this was confirmed in 1902 when the Cape Supreme Court ruled in a case which asked the Court to rule that St George’s Cathedral alter an entry for Baptism in its register.  Justice Buchanan, in his judgement stressed that, as the baptismal register was not a public register (this is what the applicant had pleaded), the court should not make an order to amend records kept by the Church. 3.  The church was a voluntary organisation and its records were for members only, so what was written in the Baptismal Register was not for use by state authorities.4  

Marriage and Divorce
However, in the Cape Colony all the marriages were collected and stored by the State/Colonial authorities from well before compulsory registration of BMDs were introduced 1895.  In the Introduction I asked why.  One of the reasons perhaps, was that marriage was a contract between consenting individuals and it was on these ‘contracts’ that the morals of society rested.  As the old Anglican Prayer Book (SABP) marriage service says it is not to be entered into ‘unadvisedly, lightly, or wantonly’ but ‘discreetly, soberly, and in the fear of God.’5  If marriage, in the parlance of the time, was seen as the bedrock of a moral society then records of marriage were needed to prove that, for example,  a child was born in wedlock, that on the death of a parent any minor children could, if necessary, be cared for by the state and that a married partner could not marry another, until death or divorce from the former partner was ensured.

As with Baptism and the Bishop Transcripts, in the England and Wales Marriage was also viewed as a “Church matter”.  But this was not the case with Roman-Dutch common law where secular marriages were permitted.  Here at the Cape this was allowed under the short Batavian Rule between 1803-18066 but with the return of the British it was once again made a religious (i.e. Christian) event.  In some of the ordinances between 1823-1826 it became permissible for slaves to marry – if they were Christians – but not many took up this privilege.  In fact, more married under Muslim rites, which had no legality in the eyes of law.7

Civil Marriage Registers were again allowed at the Cape from 1839.  In the UK this was from 1836 – in anticipation of the Civil Registration of BMDs in 1837.  It was, however, the Church that carried out most of the marriages in both places.  Once again in the UK where the majority were in the CE this presented less of a problem than in the Cape where there were many Christian denominations.  Strict procedures were required to ensure the legality of marriages and thus the legitimacy of the offspring.  Without this there could be succession and the right to property issues.  For example, in 1886 just 53 Christian ministers of the ‘mainline’ churches appeared on the Civil Service List (that is to say acknowledged ‘Marriage Officers’).  However, in Cape Town’s General Directory there were 364 people listed as Christian ministers, which under British Common Law were allowed to be marriage officers.  That means that 311 ministers exercised the function of marriage officers who were wholly unknown to government8.  In 1908 Acting Chief Justice Buchanan even stated that “I think it is time the Legislature took up this important matter and placed the marriage laws on a better footing than that upon which they are founded at present”.9

Malherbe in his article asks concerning all those ministers who were unknown as ministers and yet operated as marriage officers: “What, then, of enforcement of the legal requirements such as banns, parental rights over minors, or proofs respecting degrees of consanguinity?”  He acknowledges that race and class were factors and shows that the general view was that with respect to ‘natives and half castes in town’, surely it was ‘undesirable to allow their union by a catechist, evangelist, or local preacher’.  It was argued that Parliament should legislate so that the clergy – like doctors, land surveyors, attorneys – be required to register in order to serve as marriage officers.  It had tried to do so a decade earlier but complications cited by churchmen had persuaded it to drop the measure.8  In fact it was only in the 1960s that ministers of religion had to undergo an examination on the marriage act in operation at that time and be licensed to marry couples.  Thus, it became the government that gave permission for a minister of religion to be a marriage officer and not the Church.  With the coming of same-sex marriage, an additional examination was required and many churches forbade their ministers from taking this additional qualification on the threat of dismissal.

Into this marriage discussion which was based on quasi-religious and moral grounds, there came an interesting legal conundrum.  Although the British took possession of the Cape in 1806, they did not change the legal system from Roman-Dutch Law to the British Common Law.  Within the British Empire only the Cape Colony (and later South Africa), Ceylon and Guyana retained Roman-Dutch Law.   This happened in spite of the gradual ‘Anglicisation’ of the justice system and its judges and advocates here at the Cape.  As most of the judges appointed and advocates called to the bar were trained at the UK bar – the Inner and Middle Temples, they had little experience of Roman Dutch Law unless they specifically went to the Netherlands to train at universities there or studied the legal tomes on Roman Dutch Law most of which were still in Latin or Dutch.

One of the Common Law issues the Courts at the Cape had to face was that of divorce.  I have always been surprised at the number of divorces there seems to be here in the Cape and post -1910 in South Africa generally.  The number seemed to be much large than in the UK, especially when we compare the size of population.  I have not researched this statistically but it just seems that there are so many divorce records on NAAIRS compared with divorce records found on Ancestry and Findmypast.  This might simply be because NAAIRS has an index to all the CSC [Cape Supreme Court] folders online which includes all the divorce cases.  Watching ‘Who do you think you are’, in particular the episode on comedian Vic Reed, they found that his grandfather was a bigamist and the comment was made that it was quite common before the 1930s because a divorce was so complex and expensive.  What happened was that the majority who could not afford the divorce process simply left their marriage partner and most probably married another, thus committing bigamy.  In the UK until a year or so ago, any divorce had to have blame appropriated to one of the partners.  In the 19th Century the only blame allowed was adultery and once again this was viewed as a Church matter.

The British-trained Counsels and Judges had trouble with divorce cases as they had less experience in them.  To them dissolving a marriage was seen as destroying a pillar ‘on which civilised society rests’.10   Cape judges recruited in Britain were uncomfortable with the Roman-Dutch law’s admission of malicious desertion as ground for divorce. Vertrees Malherbe in his paper tells of a case from 1853 where Johannes le Roes sued Anna Wiehahn for restitution of conjugal rights – the mandatory first step in divorce proceedings – after she ‘unlawfully and maliciously deserted’ him, alleging his violence and threats to her life.  Justice Musgrave (who in the case) supported the finding for Anna Wiehahn also lamented: ‘I have often expressed myself very strongly against the facility which is given to married persons in this country to obtain a divorce for malicious desertion.’  Musgrave wished the new Cape parliament might place the law of divorce ‘on a more satisfactory footing’.  Malherbe rather sarcastically adds that a “satisfactory footing” would allow a judicial separation but preserved an unhappy couple’s marriage.  In Britain in the 19th Century there was a divorce called in Latin a divorce mensa et thoro11 which designated a divorce which was really akin to a separation granted by an ecclesiastical court whereby a husband and wife are not legally obligated to live together, but their marriage had not been dissolved.  The Roman-Dutch tradition offered a full legal separation available through courts of law and not through the Church.12

While all this might sound a lot like what the courts offer today in divorce trials, in practice this was not always the case.  In 1843, after two years of marriage, a certain Henry Farmer of Cape Town left Elizabeth van Wielligh and went to England.  Shortly after, she having no means to support herself entered into what the husband later called ‘a criminal connexion’ with Frederick Watson whom she married, ‘representing herself as a widow’.  When Farmer returned (1852) he secured a divorce, citing her adultery.  A judge asked if, in granting such divorces, the court had been faithful to the ‘principles of morality and public policy by which it guides itself’.  Justice Bell – another ready critic of Cape Roman-Dutch law – echoed concerns respecting ‘persons of that rank of life’.  Such judgments reflected the court’s deep consciousness of social hierarchy – above and beyond the assessment of ‘rank, social position, and education’ deemed appropriate when awarding damages.  Judges regretted the ‘monstrous’ local provision allowing plaintiffs as much as a third of a century in which to seek a remedy.  The court’s concern was not, however, for persons thus consigned to a marital limbo. Contemplating Mrs Farmer, Bell observed:
… it is good English as well as Dutch law that a woman compelled by her husband to live apart from him, must return to those moral restraints which she was obliged before marriage to impose upon herself, and is not entitled to justify by his conduct, the prostitution of her person and mind …

Among the arguments put forward by the lawyers included that the total neglect by the husband of the wife would be no bar to his right to divorce if she should commit adultery during his neglect of her.  Justice Bell in his comments on a case like this seemed to think that sexual morality was more important than Mrs Farmer’s predicament where she was abandoned and indigent.  She should have reverted to maiden-like chastity.   Justice Bell’s dictum that Cape law allow malicious desertion as a reason for divorce was simply ‘sin and confusion to society’. 

The law also required that plaintiffs seeking a divorce were ‘pure’ not only when the suit commenced, but during the whole course of the proceedings.  If they were themselves adulterers, or committed adultery while suing a spouse for that offence, the case was simply dismissed.  One wonders if the court investigated Mr Farmer’s behaviour while apart from his wife? Nothing to that effect was recorded in the case file.  There is a case a century later, the law still unchanged, which resulted in the absurd situation where two adults both of whom had committed adultery were denied divorce and had to remain bound to each other as punishment for their misbehaviour.

Conclusion
Why did the Cape keep records of marriages from such an early date?  The Christian sexual moral teaching stresses the need to control who married whom and what happened to the products (children) of that marriage.  Who was doing the marriages (ministers of religion), although also important, seemed to be less controlled.  Following Roman-Dutch Law, the courts at the Cape were more involved in this area of common law than in the United Kingdom. 

The following of Roman-Dutch Law also led to a more acceptance of divorce as a legal rather than an ecclesiastical matter.  This was perhaps aggravated by the fact that the population at the Cape were so litigious.  Looking at the CSC files on NAAIRS there seem to be a lot of civil cases where one person is suing another for many reasons besides divorce or bad debt.  Perhaps the ease with which cases could be brought to court and the ‘malignant desertion’ cause being allowed for divorce, made the number of divorces appear larger per size of the population than in the UK.
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References used:
Van Staden, J. H. Church Law as a Isu Sui Generis in South Africa: A Reformed Perspective (Bloemfontein: University of the Free State, unpublished PhD Thesis, 2014)

Malherbe, Vertrees C. “Family law and ‘the great moral public interests’ in Victorian Cape Town, c.1850-1902” Kronos vol.36 n.1 Cape Town Nov. 2010

Anon. A Book of Common Prayer Authorised for use in South Africa (OUP & SPCK: Cape Town, 1954) The Marriage Ceremony.

From webpage: http://anglicanhistory.org/africa/day_gray.html downloaded 15 Sept 2020

  1. The Bishop’s Transcripts are copies of the entries in a parish register and were made by the churchwarden or minister. They were sent to the Diocesan Registry each year and are part of the diocesan records. These transcripts were required from 1597.  Once civil registration of births, marriages and deaths started in 1837, the bishop’s transcripts became less important and many parishes stopped keeping them. [↩]
  2. http://anglicanhistory.org/africa/day_gray.html downloaded 15 Sept 2020 [↩]
  3. J. H. Van Staden, Church Law as a Isu Sui Generis in South Africa: A Reformed Perspective (Bloemfontein: University of the Free State, unpublished PhD Thesis, 2014), p. 116 [↩]
  4. Having said that the DHA were willing to take certified copies of Baptism Register Entries when 16 year-olds were applying for ID documents around the time of the 1994 Elections and the Birth Registrations could not be located or if they had never been registered. [↩]
  5. A Book of Common Prayer Authorised for use in South Africa (OUP & SPCK: Cape Town, 1954) The Marriage Ceremony, p140. [↩]
  6. Malherbe, Vertrees C. “Family law and ‘the great moral public interests’ in Victorian Cape Town, c.1850-1902” Kronos vol.36 n.1 Cape Town Nov. 2010. [↩]
  7. Derek Pratt, The Anglican Church’s Mission to the Muslims in the Western Cape (Grahamstown: Rhodes University, unpublished Masters Thesis, 1997) p.34 also Yusuf da Costa & Achmat Davids, Pages from Cape Muslim History (Pietermartizburg: Shuter & Shooter, 1994) p. 57. [↩]
  8. Malherbe, op cit p.12 [↩] [↩]
  9. Van Staden, op cit p. 116 [↩]
  10. Malherbe Op cit p.9 quoting from J. Buchanan, ed, Cases Decided in the Supreme Court of the Cape of Good Hope as reported by the Hon. William Menzies Esq., 3 vols (Cape Town, 1870-1903). [↩]
  11. From table and bed, but more commonly translated as “from bed and board.” [↩]
  12. Malherbe, Op cit p.9 & 10 [↩]