The elusiveness of divorce in medieval England: the marital troubles of the last Warenne earl of Surrey (d.1347)

In today’s blog Dr Simon Payling from our Commons 1461-1504 project continues our ongoing look into the marriages of Parliamentarians, both happy and unhappy. Divorce in medieval England was infrequent and difficult to secure, but this did not stop individuals from making an attempt…

Medieval England knew two forms of divorce. The first, and overwhelmingly the most important, was divorce a vinculo matrimonii (from the bond of marriage), a ruling by the Church that a marriage had never been valid. This turned on some default in the couple’s consent to it, either that consent had been coerced or they themselves were canonically incapable of giving it (because, for example, they were underage or too closely related to make a valid marriage). The second, what might be termed a separation, was divorce a mensa et thoro (from bed and board), a ruling that the couple need no longer live together on the grounds, most commonly, of cruelty or adultery. No doubt the latter form had some practical benefits, but in one important sense it corresponded poorly to the realities of the human condition. It did not provide for remarriage until after the death of wife or husband. This might have profound dynastic consequences, or at least threaten them, and fear of those consequences could lead to the most dramatic of events. Witness, to cite the prime example, Henry VIII’s campaign to divorce Katherine of Aragon a vinculo.

From the point of view of the Church, these limited grounds for divorce were necessary protections for the sanctity of marriage and the spiritual health of couples; but their value is not to be understood only from a religious perspective. Aristocratic spouses stuck in unhappy marriages may have struggled to see that value, but for aristocratic society as a whole the difficulty of securing a divorce provided stability and diminished one important potential for conflict. Within this elite, marriages represented not simply the union of a couple but a political and financial arrangement between two families which could not be repudiated without damaging consequences.

The arms of Earl Warenne

This fact that no canonically valid marriage could be undone meant that divorces were infrequent, although this did not prevent some hopeful individuals making the attempt. The most notable and protracted case involved John Warenne, earl of Surrey, who, in 1306, in a match brokered by the ageing Edward I, married the King’s granddaughter, Joan, daughter of Henri, late count of Bar. The marriage was prestigious but also problematic: Joan was only ten years old, half the earl’s age. It also appears that the earl did not have a temperament ideally suited to marriage: in the view of one modern commentator he sowed ‘his wild oats rather freely; indeed, he appears to have had a considerable supply and he did not get rid of them all until his death’. At all events, by 1313, the couple were on terms of active hostility. 

Warenne spent the next 30 years attempting to secure a divorce and to divert his considerable inheritance into the hands of his illegitimate issue. At every turn he met with failure. The papal curia resisted his claims that he was too closely related to marry Joan (an impediment for which the couple had had a papal dispensation at the time of their marriage), and that he had been precontracted to his mistress, Maud Nereford, by whom he had two sons. Finally, in apparent desperation, he resorted to a radical gambit. In the mid-1340s, when he was approaching sixty and had been married to Joan for nearly 40 years, he claimed, as a new impediment to the validity of his marriage, that, previous to his marriage, he had had a sexual liason with Joan’s maternal aunt, Mary (b.1278-d. by 1332), daughter of Edward I, a nun in the Wiltshire house at Amesbury. This sensational and discreditable claim got him no further, and, if it were true, it begs the question of why he did not rely upon it when first seeking divorce. He died in 1347 still technically married to Joan. Not only was he unable to secure divorce but his attempts to pass his inheritance to his illegitimate issue foundered on the resistance of his common-law heir, his nephew, Richard Fitzalan, earl of Arundel. Here lies a certain irony, for Arundel was one of the few members of the higher nobility to successfully sue for divorce a vinculo: in 1344, at about the time his uncle was pursuing his desperate claim in respect of his affair with Mary, the papal curia accepted his claim that he had been forced into marriage with Isabel Despenser, his wife of more than 20 years, when under age.

The Warenne Seal

It would be a mistake to view the pursuit of divorce only in terms of aggressive husbands, like Warenne and Arundel, seeking to rid themselves of wives for some dynastic or political advantage. The boot was sometimes on the other foot. In terms of rank the most notable instance dates from 1271 when Alice Lusignan, niece of the half-blood to Henry III, divorced Gilbert de Clare (d.1295), earl of Gloucester, on the grounds of too close a blood relationship.

More vivid are those instances were a wife cited not kinship, coercion or pre-contract but rather the impotence of her husband. This too went to the issue of consent. The Church was inclined to see impotence as a permanent condition and took the view that one who was incapable of having issue was also incapable of consenting to a marriage. Impotence was thus grounds for divorce a vinculo. The unlucky marital history of Maud, a daughter of the northern baronial house of Clifford, is a case in point. In about 1406 she married another northern lord, John Neville, Lord Latimer, but soon after secured a divorce causa frigiditatis of her husband. While, not surprisingly perhaps, he did not remarry, she found a new spouse in Edward III’s grandson, Richard, earl of Cambridge, who was executed for conspiring against Henry V in 1415. Twice bitten, she did not marry again. A more dramatic example involved a family on the borders of the peerage. In the late 1360s Nicholas, grandson of William, Lord Cantilupe, married the young daughter of Sir Ralph Paynell of Casthorpe (Lincolnshire). She immediately sought divorce on the grounds that her husband was without male genitalia. In the face of her husband’s violent objections, she persevered and won a divorce, going on to remarry. Nicholas fared less well, dying in Avignon in 1371 as he attempted to reverse the papal ruling. His brother and successor, William, was perhaps even more unfortunate in the game of marriage, for his ended in murder. In 1375 he was killed by his wife, Maud Neville. The fact that Paynell was also implicated in the murder suggests that the crime was connected, in part, to his daughter’s unhappy experience as Nicholas’s wife.

The lurid stories of the Cantilupe brothers suggests that divorce could serve to magnify rather than lessen the tensions between families that naturally arose from unhappy marriages. In this context, the barriers the medieval Church placed in the way of its accomplishment may, for the aristocracy, have served a social good. 


Further reading

F. Royston Fairbank, ‘The Last Earl of Warenne and Surrey, and the Distribution of his Possessions’, Yorkshire Archaelogical Journal, xix (1907)

F. Pedersen, ‘Motives for Murder: the Role of Sir Ralph Paynel in the Murder of William Cantilupe’, in Continuity, Change and Pragmatism in the Law: Essays in Memory of Professor Angelo Forte (2016)

B. Wells-Furby, Aristocratic marriage, Adultery and Divorce in the Fourteenth Century: the Life of Lucy de Thweng (1279-1347) (2019)

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