Divorce in Early Tennessee
By Gale W. Bamman, CG, CGL
© Copyright, Gale W. Bamman, 1985, 1999
Editors note: This paper has been adapted from the
Introduction found in her book, Tennessee Divorces 1797-1858, Taken from 750
Legislative Petitions and Acts* by Gale W.
Bamman and Debbie W. Spero, and is published here with permission.
Divorce was the last resort for unhappily married persons in the early 1800s because of
the ensuing shame, embarrassment, and ostracism. Nevertheless, when a marriage
could no longer be tolerated, a divorce was sought, either through the courts, or by
petitioning the Tennessee General Assembly for a decree.
Only a small number of divorces were sought by petition to the General Assembly,
1797-1858. The others were brought before the superior courts between 1799-1809, then
from 1809-1835 in the circuit courts, and since 1835, either in the circuit or chancery
A Few Words of Caution
1. Do not assume that the surname that the female requested to use at the dissolving of
the marriage was her maiden name. We found many mentions of second marriages of
widows and widowers.
2. Do keep in mind that the accused party was given no chance to make a statement in
his/her own defense when the petition was reviewed by the Legislature. A petition may be
may be entirely accurate or only partially accurate. Certainly statements by neighbors
and relatives, as well as many accompanying signatures, tend to add credibility to some
petitions. But, for an example of opposing statements, read the petitions of David
McNabb and Peggy McNabb.
MCNABB, DAVID. MAY 1822. CARTER COUNTY
3. When the words upon proof accompany the Legislatures
decree, the divorce was
not considered final until final proof was presented in court, and the case tried there.
Last winter . . . (David) . . . was called from home to transact business in the
Cherokee country . . . While he was gone, his wife, MARGARET McNABB, took
up with William Owins of North Carolina and went off with him to Wilksborough, left
David with three small children.
Statements by John McInturff, Voelit Swaner, Lucinda Dunkin, and George
McNABB, PEGGY. 1822. CARTER COUNTY
In January 1822 Peggys husband, DAVID McNABB, took up with Jane Matticks.
He moved from Carter County where Peggy lived, to Monroe County, 150 miles away.
David and Jane had several children, Peggy heard.
Petition includes a few signatures.
EARLY TENNESSEE DIVORCE LAWS
The United States Constitution left complete authority over marriage and divorce
legislation to the separate states, and the first state constitutions, by omitting the
subject, left the matter of divorce to the legislatures. Thus each state had the freedom to
develop its own divorce
In 1799 the Tennessee General Assembly gave authority to grant divorces to the
superior courts, located in the districts Mero, Hamilton, and Washington. However,
both prior to this act and until 1835, divorces and privileges of feme sole were granted
by the General
(Feme sole is a term used to indicate a single woman
whose marriage has been dissolved by death or divorce, and also a woman who has
been judicially separated from her
The researcher seeking information on a divorce in Tennessee between 1796 and 1835
should be aware that although a great majority of the divorce cases were heard in court,
a large number of divorce and feme sole petitions were brought before and were acted
upon by the Tennessee Assembly.
Valid grounds for divorce in 1799 were:
a) Impotence, or bring incapable of procreation;
It was further enacted in 1799 that if any husband or wife upon false rumor,
apparently well founded, of the death of the other, (where such a person has been
absent for the space of two whole years) has married or shall marry again, he or she
shall not be subject to the pains of adultery, but it shall be at the election of the party
remaining single, at his or her return, to insist to have his former husband or wife
restored, or to have his or her own marriage dissolved, and the other party to remain
with the second husband or wife, if the suit is instituted within one year after such
b) When the marriage partner knowingly entered into a second marriage, in
violation of a previous vow made to a former wife or husband, whose marriage is still subsisting;
d) Wilful and malicious desertion or absence without reasonable course, for the
space of two
The person requesting a divorce had to meet certain conditions:
a) He or she must have been a resident of the State of Tennessee for at least one year
prior to the filing of the petition;
Consequently, if a woman wished to instigate a divorce suit in the courts, she had to
find some male to represent her there, perhaps an attorney, but certainly someone who
could and would accompany her to the court where the suit was to be heard. Since the
court where may not have been in the county in which she lived (prior to 1809), that
may have placed a hardship on her. Additionally, there would have been financial costs
involved in a court suit.
b) The petition had to be presented along with an affidavit, taken upon oath before the
judge of the superior court or before some justice of the peace in the county where the
petitioner resided, that the facts contained in said affidavit were true, and said petition
was not made out of levity.
c) A woman could not petition in her own name, but had to petition by her next
friend. (A married woman in this time period of 1796-1836, suffered the civil
disability of being unable to sue in her own
There was another avenue open to her, however. She could send a written petition to
the Tennessee General Assembly, where it would be read by the representative from
The petition would then be referred to a committee (in 1797, the
Committee of Propositions and Grievances) for consideration. Upon the
recommendation, a bill would be drawn up and then would on three occasions be read
in both the Senate and the House. If the bill passed, it was then
enactment would subsequently appear in the Acts of
The General Assembly took one of four approaches to a bill and petition for divorce or
a) It dismissed the petition, and refused to act upon it; or
In 1807 the General Assembly repealed the Act of 1799, and then revived it in 1809,
changing the jurisdiction of divorce cases from the superior courts to the circuit courts,
and specifically, the circuit court of the county where the petitioner resided at the time
of filing the
b) It decreed a divorce from bed and board, in which instance the woman was granted
the privileges of feme sole.
In addition to the grounds listed earlier, the following were grounds for legal
c) It decreed that the marriage dissolved. However, if the divorce had been granted
because of adultery, the person who had been guilty could not marry, during the life of
the former husband or wife, the person with whom the said crime was committed. If it
was the wife who had been guilty of adultery and if she was proven even to cohabit
with said person, she could not then alienate her
1) Malicious abandonment of a wife, or turning her out of doors;
2) Cruel or barbarous treatment endangering her life.
3) Offering such indignities to her person as to render her condition intolerable and
thereby forcing her to
d) It recommended a divorce upon proof, in which case the divorce suit had to be taken
In 1819 the laws were further amended, and an additional ground for divorce was
If a woman shall be in a state of pregnancy with child of color at the time of
marriage, it shall be lawful for the circuit court to grant a
When the Tennessee Constitution was rewritten in 1835, the circuit courts and chancery
courts were given the SOLE jurisdiction over divorces. The jurisdiction of the
Legislature in granting divorces or feme soles was REMOVED, and its authority in such
matters was reduced to the degree that it may authorize the courts of justice to
grant divorces for such causes as may be specified by law, but such laws shall be
general and uniform in their operation throughout the
After 1835, petitions for divorce, though reduced as to number, continued to be
presented to the General Assembly, but no decrees were made on these.
My remarks and interpretations of early laws have been reviewed by C. Edward
Coomer, Attorney at Law, Nashville Tennessee.
Gale W. Bamman
The Encylopedia Americana, (Danbury, Connecticut: Grolier, Inc., 1984),
Vol. 4, p.215.
Tennessee Code, Annotated, (Charlottesville, Virginia: The Michie Company,
1980), Vol. 1 Constitution, Art. XI, Section 4. P. 737.
Henry Campbell Black, Blacks Law Dictionary. (St. Paul, Minnesota:
West Publishing Company. 1951), p.745.
Acts of Tennessee, 1799, Chapter XIX, Section 1, p.48.
Ibid., Section 5, pp.49-50.
Ibid., Section 2, p.48.
See example in Senate Journal, 1825. p.69.
See example in Senate Journal, 1797. pp.57, 60, 68, 70, 77, 78.
See example in Acts of Tennessee, 1799, p.92.
Acts of Tennessee, 1799, Chapter XIX, Section 9, p.52.
Ibid., Section 6, p.51.
Acts of Tennessee, 1809, Chapter LXLVIII, Section 1-2, p.217.
Acts of Tennessee, 1819, Chapter XX, Section 2, p.45.
Tennessee Constitution, Article XI, Section 4.
For the generous help and assistance that we received at the Tennessee State Library
and Archives, we wish to thank Fran Schell, Reference Librarian, Marylin Bell, Senior
Archivist, and Florence Langford, Assistant Archivist.
*Tennessee Divorces 1797-1858, Taken from 750
Legislative Petitions and Acts, may be purchased from
Bryon Sistler and