by Julia Bradshaw
Divorces are now an accepted fact of life but before the Divorce and Matrimonial Causes Act of 1867 they were impossible for New Zealand residents.
From 1 January 1869 petitions for divorce could be heard by the Supreme Court in Wellington. The Act, however, contained a double-standard which made it easier for men to obtain a divorce. Men only had to prove that their wife had committed adultery whereas a woman had to prove her husband’s adultery and life-threatening cruelty or desertion or other aggravating factors such as bigamy.
Despite the fact that it was easier for men to get a divorce it was a woman who obtained the first divorce in New Zealand. In October 1868, Emily Croucher submitted a petition asking for a divorce on the grounds of her husband’s bigamy and adultery.
Is this Emily Croucher? This photograph labelled McWilliams was taken at Whanganui c.1873 and the author believes it is of Emily Cauty/Croucher/McWilliam.
Alexander Turnbull Library, ¼-005479-G
Born in Dover, England in 1840, Emily was the daughter of a schoolmaster. She came to New Zealand in 1853 with her older brother James Cauty and his wife Eliza. The family settled in Wellington.
Emily’s brother was a mariner and had a business relationship with fellow mariner Captain Elijah Croucher. In 1860, Emily married Captain Croucher, apparently because her brother owed him money, but very quickly discovered that she didn’t like her new husband at all.
Having been persuaded by Emily that they should move from Wellington to Lyttelton, Croucher left to find a house there. He wrote several times asking his wife to join him in the South Island and in the end, after he sent £18, she agreed to do so. Emily left Wellington on 24 December 1860, but instead of sailing to Lyttelton she took passage on the Sea Gull bound for Whanganui where she reinvented herself as Miss Neville, a dressmaker.
Croucher returned in Wellington a few weeks later to look for his wife. When he couldn't find her there, he decided she “had made off with herself”. A couple of years later Croucher married Eliza Cauty (his wife Emily’s brother’s widow), Eliza’s husband (and Emily’s brother) James Cauty having drowned in 1861. Croucher described himself as a widower despite having no evidence that his first wife was dead. Emily was in fact alive and well in Whanganui, where, as Miss Neville, she was active in the Anglican Church.
Emily heard about her husband’s marriage about 18 months later and was probably pleased about it as her husband’s bigamy gave her the grounds to apply for a divorce. She did this promptly and her petition was heard at Wellington a year later in October 1869. When giving evidence in court Emily said that she left her husband because she “had heard that he was committing adultery, and also because I disliked him very much, and I considered myself perfectly justified in leaving him …. The reason why I disliked him so much was because he was nearly always drunk …. I had never seen him drunk before our marriage …. He was very low and vulgar in his language and conduct to me.”
At the end of the hearing Chief Justice George Arney said “that under ordinary circumstances … the grounds on which the petition had been presented were not sufficiently strong” to warrant a divorce “but that the Court considered this as not only an exceptional, but also as a specially painful case, in which a young and inexperienced girl had been induced … to marry a man [who] she discovers to be a drunkard and a disreputable fellow.”
Emily, having given her evidence with “great clearness and candour” was issued with a decree nisi although the Court pointed that the case should not be thought a precedent as drunkenness and vulgarity could not on their own be grounds for divorce. After the requisite 6 months a decree absolut was issued on 11 July 1870, the first in New Zealand.
Photographs of Rev James McWilliam and a woman who is almost certainly Emily, both taken at the studio of William James Harding in Whanganui. Alexander Turnbull Library, ¼-005479-G and ¼-004513-G
Elijah Croucher drowned on the Wairarapa coastline in January 1873 after falling overboard from his cutter. He was survived by his second wife Eliza and their eight children. Eliza, who also had five surviving children from her first marriage, died in Wellington in 1916.
Emily McWilliam. Reproduced from the Otaki Historical Society Journal, volume 21, 1998.
Emily married Ōtaki missionary Reverend James McWilliam at Whanganui in June 1873 with the local newspaper still describing her as Miss Neville. To cover her past, Emily used her maiden name for the marriage registration but described herself as a widow. After their marriage Emily assisted her husband with his missionary work amongst Māori at Ōtaki. She died in 1899 at the age of 59 and was survived by her husband and four children. Emily was remembered as dispensing a “motherly solicitude in times of trouble and sickness” but not as the first person in New Zealand to obtain a divorce, a story that that she had successfully hidden.
The double standard relating to adultery in divorce law was removed from New Zealand’s Divorce Act in 1898 but the numbers of people divorcing did not rise significantly until after the First World War.
Julia Bradshaw is Senior Curator Human History at Canterbury Museum