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Sunday, December 9 , 2018, 12:09 pm | Fair 66º


Brian Burke: (Column 173) — Henry, Catherine, the Gold Rush and Cultural Revolution of ‘60s

Henry did not divorce any of his wives

The mnemonic: “Divorced, beheaded, died, divorced, beheaded, survived” is wrong.

» Henry’s first marriage to Catherine was annulled on the grounds that it was prohibited by scripture and should not have been allowed in the first place.

» Henry’s next marriage to Anne ended on a chopping block, not in a courtroom.

» Henry married Jane Seymour 13 days after Anne lost her head. Jane gave birth to Edward the next year; she died 12 days later.

» The selection of Anne of Cleves was supervised by Thomas Cromwell. Henry was unable to consummate the union because he found Anne to be repulsive in both appearance and smell.

Cromwell provided Henry with a Holbein portrait of Anne, but Henry thought it was a grossly inaccurate representation of her appearance. Cromwell got the blame.

It’s said that Anne didn’t know what “consummation” meant (in German or English), but she gave her wise consent and cooperation to the annulment of July 9, 1540.

On July 28, 1540, Cromwell was beheaded and Henry married Catherine Howard. (Anne of Cleves lived longer than Henry and longer than any of his wives.)

» Catherine Howard was 19; Henry was 50, obese and suffered from a smelly, festering ulcer on his leg that oozed for the rest of his life. One year and eight months after the wedding, Catherine was tried, found guilty of adultery and sent to the block.

» Catherine Parr married Henry on July 12, 1543; they stayed married until his death on Jan. 28, 1545.

The mnemonic should be: “Annulled, beheaded, died, annulled, beheaded, survived."

The difficulties experienced by Henry VIII didn’t establish the right to divorce under English law, but the Act of Supremacy gave the English Parliament, rather than the pope, authority to adjudicate marital status.

English divorce was accomplished by means of a specific Act of Parliament. By the time divorce was made somewhat more accessible by the Matrimonial Causes Act of 1857, the number of divorces since Henry was only 324, on average – about one per year. (See "Heartbreaking History of Divorce".)

From Gold Rush to 1969

By the time of the California Gold Rush and statehood, the English notion of divorce and the Spanish notion of community property had both been modified to serve the needs of a rapidly expanding multicultural nation.

California Community Property in 1850 was similar to the Spanish version with two major exceptions: The parties could keep for themselves the income generated by their separate property, and community property was divided in the event of divorce.

Current Family Code Section 720 is vestigial evidence of how marriage and divorce were understood in California in 1850. Section 720 says:

Spouses contract toward each other obligations of mutual respect, fidelity, support

Marriage was a contract. The parties made mutual promises similar to the traditional wedding vows. If one party broke one of those promises, the other could sue for divorce, which was the legal remedy for the breach of this special contract.

A jury would decide if the breach had occurred. If so, the trial judge could compensate the innocent spouse for damages to be paid out of the guilty spouse’s half of the community property — and award alimony from the guilty spouse’s future income.

The Revolution of 1969

In California, the 1960s ended with a change to the notion of marriage that was far more radical than Henry’s break from the Vatican in 1532.

The relationship was over when one spouse said under oath that irreconcilable differences had led to the irremediable breakdown of the marriage relationship, and community property was to be divided equally without regard to fault.

This meant that 119 years of California law and more than 400 years of Anglo-American law had been superseded by principles untested in English-speaking countries.

There were hundreds of appellate court opinions dealing with family-law issues on the shelves of law libraries throughout the state. A few might express a principle that might be useful in future cases, but most had lost their authority overnight.

What precedent could be preserved would be a problem for legal scholars.

How to interpret the fresh provisions of the new Family Law Act would be the task of the courts. Deciding when supplemental provisions were necessary would be the task of the legislature.

It was left to Stephen Adams to help divorce lawyers figure out how to earn a living after a “divorce” became “dissolution of marriage” and fault was no longer an issue to be decided by a jury.

In the next column, we’ll finally get to Steve Adams. Steve, for better or worse, was smart, hardworking and ambitious. He made a lot of money by teaching others ways to do the same.

— Brian Burke is a certified family law specialist practicing family law and mediation in Santa Barbara. A researcher and educator in the field of divorce and family conflicts, he also is the creator of the Legal Road Map™. Click here for more information, call 805.965.2888 or e-mail [email protected]. Click here to read previous columns. The opinions expressed are his own.

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