History Lab Ep2: Damages for a broken heart

Tamson: This is History Lab – I’m Tamson Pietsch. Today – a history of love, law and heartbreak.

Captain John Payne: Dear Sarah, my affections for you have not been sudden or precipitant. I have fostered them for some time within my breast although you have not been acquainted with it before now.

Sarah Cox: My Dear Payne, you shall have nothing to complain of in my conduct, and if possible will love you the more for breaking me out of so bad a habit.

Captain John Payne: My Dear Sarah, write me that effect and it will be one of the happiest moments of my life.

Sarah Cox: My Dear, come and see her who loves you more than all the world. Your own, Sarah Cox.

Tamson: Quietly buried away in western Sydney’s state archives is a secret history of love. It will make us confront how we’ve come to know and police what we do with our feelings.

Sarah Cox: My Dear, I don’t know whether you received my letter yesterday. If you will see me, answer…if not, I will never trouble you more.

Tamson: In 1822, Captain Payne, a sea merchant, fell in love with a poor, 16-year-old seamstress, Sarah Cox, who was working near the docks in Sydney Cove. But as the story so often goes, Payne moved on to wealthier woman and Sarah was left out in the cold.

Sarah Cox: Sir, I will thank you to send my letters and everything else you have belonging to me by the bearer, and not give me the trouble of sending any more to an ungrateful wretch as

you are.

Tamson: In the 19th century, a broken engagement could damn a woman for life. But in those days, scorned women had an unexpected way to get square.

Tamson: Today – an investigation into a law that was on the books until the 1970s.

It was called Breach of Promise of Marriage.

Tamson: More than one thousand plaintiffs, almost all women, went to court after being jilted by their lovers before getting to the altar. They were suing for the broken contract of an engagement and were often awarded massive damages. So, in what weird world can you get the state to step in, when someone just ghosts you?

Clive Evatt: I’ve had up to 25,000 pounds. That would pay for a two-story house in Double Bay on the water. Shit, that was big money.

Tamson: How do you sift the mess of a broken heart from the court records?

Emily Hanna: So, we do say to people don’t wear your best clothes, don’t wear white.

Tamson And, what can this law tell us about the history of love?

Mel Flyte: They say that when a woman falls she falls forever.

Tamson: Legal historian Alecia Simmonds and 2SER producer Tom Allinson, have been digging up this history of love by going through these old writs. I mean for nerd-burgers like you and I Alecia, the archives seem like a pretty great place to find love. But I imagine that to many it would seem strange.

Alecia Simmonds: Yeah, one of them I opened up and all of these love letters fell out and I

thought oh my God this is this incredible kind of museum of love in a way. This is

this secret kind of history of love within this archive of law. What are these love letters

doing here? And to be honest I felt quite affected at the time. It just felt awful really. There was such a collision between these intimate howlings of a broken heart stapled or falling out of a writ. You know it just didn’t make any sense to me.

Tamson: And to be honest this breach of promise law sounds even stranger. So how did you make sense of it?

Alecia Simmonds: Yeah, I mean look, you’ve got to place it within the context of the time. But another part, is saying, ok, so what do we mean by love.

Hsu-Ming Teo: Oh, okay so this is a really difficult question

Alecia Simmonds: So, that’s my friend Hsu-Ming Teo. I’d call her an historian of love.

Hsu-Ming Teo: Yeah, yeah, cultural historian I guess. Who specialises in love, love literature.

Hsu-Ming Teo: We’re at a stage in the present day where we understand love to be about feelings. Couple of centuries back, love was about feelings but it’s also about actions. If you understand love to be an action and not just a feeling, then you can do the actions and still call that love, right. Even though you don’t have the feelings anymore.

Alecia Simmonds: Yeah, I think that it was actually a profoundly public performance of duty, honour and promise-keeping in the 19th Century.

Tamson: But why was there such an emphasis on duty and keeping your promises back then?

Alecia Simmonds: Look it’s hard to tease out. But you can start by looking at what was at stake in love.

Clive Evatt: If a woman gets stitched today as they do all the time they go to find someone else.

Alecia Simmonds: Clive Evatt’s one of the last lawyers to have practised breach of promise before it was abolished in 1976.

Clive Evatt: But in the 19th century that was harder for women. If they’re engaged and the wedding falls through, they may never marry.

Tom Allinson: Why is that?

Clive Evatt: Social stigma. She was engaged to so and so, he wouldn’t marry her. That couldn’t happen today just couldn’t happen. No one would know what you’re talking about.

Hsu-Ming Teo: The stakes were really high for women. It’s about their physical security, it’s about their economic security and it’s whether they’re going to have, you know, a happy or an unhappy life.

Tamson: So, when Captain Payne just dumped Sarah Cox, she probably saw her prospects just disappear down the plug hole.

Alecia Simmonds: You’d think so. But by taking him to court in the first breach of promise case before a jury in Australia she wasn’t just taking fate into her own hands. She was one of the very first to use the law, to define love in the colonies. And I needed to go through her case file to find out exactly how.

Emily Hanna: So, we’ll just grab some gloves. OK, so this book is called the judgement book. So, its 200 years old. And so, this would be the original leather binding.

Alecia Simmonds: We’re in the archives with Emily Hanna, an archivist. She’s got rubber gloves on and orange dust from the old court records is getting everywhere.

Emily Hanna: That’s what happens to leather, it turns into an orange dusty thing. So, we do say to people don’t wear your best clothes, don’t wear white. So, what I’ve got here was a box of judgement rolls. And this would be all the paperwork. There might be subpoenas for people to appear before the court.

Alecia Simmonds: You get the interrogatories, you get the bills of cost.

Emily Hanna: So, there’d be the depositions from the various witnesses.

Alecia Simmonds: You can get lockets of hair, you can get train tickets, you can get lists of the items of a woman’s trousseaux.

Tamson: That’s a box of all the things a woman collects in the hope of getting married, like linen, lingerie, a wedding dress…

Emily Hanna: But in something like this, which is a breach of promise case, I suppose the letters would be a way that one party has demonstrated their promise and the other can use that then as evidence. OK, so just seeing the signature, oh, this one is John, Payne, signature. His writing is actually not too bad. It’s quite clear.

Tom Allinson: Do you think he’s trying to impress her?

Emily Hanna: Maybe, should I read it? “I beg leave to acquaint you. It is my intention to sail on Tuesday next if possible…”

Captain John Payne: Therefore, I think it my duty to inform you that my affections for you are founded on the most pure and honourable motives which any man could be in possession of.

Alecia Simmonds: So, this was Sarah’s proof that Payne had proposed to her.

Captain John Payne: It is my intention to make you a companion of my future life. And believe dear Sarah that I shall always have you at heart.

Emily Hanna: “I remain dear girl yours most affectionately. John Payne” Wow.

Alecia Simmonds: But there’s more to this story – we’ve found another love letter to Sarah.

Emily Hanna: To me that doesn’t look like Payne, that signature.

Alecia Simmonds: And it’s from another man.

David Souter:            Sarah could your Eyes but see

The wounds your Killing beauties give;

A Lover you might read in me

Who if you frown disdains to live

Yours most sincerely attached, David Souter

Tamson: Ah, so Sarah had another suitor! What a colonial love triangle. But hang on: was his name really Souter?

Alecia Simmonds: Yes, Payne’s lawyer did have fun with the spelling. The case note says, “it appears that Captain Payne was the only Payne that could give her pleasure; yet he was not the only suitor that would suit her”.

Tamson: Hilarious

Alecia Simmonds: And this was valuable evidence for Payne. I found in the archival documents that he’d even paid off Sarah Cox’s drunken servant with a new set of clothes and a bottle of rum to pinch Souter’s letters from Sarah’s house.

Tamson: So, Payne was really relying on this other man’s love letter for his breach of promise defence, you know.to prove the engagement contract was void?

Alecia Simmonds: Yeah, I mean one implication was that Sarah was unchaste. But the main defence was that it proved she’d released him from his promise and that she’d suffered no injury. But the court didn’t agree. Sarah argued that she’d rejected Souter.

Tamson: OK so, in that case, if the promise still stood, how did the prosecution prove that Payne had broken his promise of marriage to Sarah?

Alecia Simmonds: Look, by the time they went to court Payne was already married to a richer, older widow. So, he’d clearly traded up. But the court records show that Sarah had a very powerful friend in William Charles Wentworth, her barrister, and a pretty influential figure in establishing self-government for the colonies. So, interestingly, he didn’t tell the jury to worry about Sarah’s feelings, but instead instructed them in his final speech, to think about how they might feel if they were fathers and this had happened to their daughter. So, this is interesting to me because it shows how much love was a group emotion rather than just an individual passion that it is today. And it was a strong argument. Sarah Cox won. They slapped Payne with a ruling of 100 pounds in damages.

Tamson: And that was big money, right?

Alecia Simmonds: Yeah, I mean today it would calculated at around 180,000 dollars.

Tamson: Wow, that’s a huge penalty, it makes the state seem pretty obsessed with marriage though.

Alecia Simmonds: Yeah, probably partly for the same reasons we are today. I mean there’s a conservatism to marriage – the idea that it makes people more settled, more industrious and more child-focused. But there are also reasons peculiar to their time. Governor Macquarie arrived in 1810, stepped on to Botany Bay and declared that everyone must marry.

Governor Macquarie: His excellency the Governor, has seen with great Regret, the Immorality and Vice, so prevalent among the lower classes of this Colony, and feels himself called upon to reprobate the scandalous and promiscuous custom so shamelessly adopted, throughout this Colony, of Persons of different sexes living together unsanctioned by the legal ties of matrimony.

Alecia Simmonds: This was the period when the middle class rose to political and economic supremacy. And they did that through basing their claims to the governance of the public sphere on private morality. So, marriage became, it was a way for them to assert their dominance by claiming a superior morality to the ruling classes and the unruly working classes.

It’s also a time when some of the colonies were trying to achieve self-government in Australia and they’re doing this based on a claim to respectability. So, they’re needing to shake off their morally dubious origins, you know, their convict roots. And, of course, an abandoned woman was very expensive. You know, she couldn’t support herself through work, so she was reliant on either the family or the community.

Tamson: Ah, so the courts were shifting the financial responsibility for these women from the community to these individual bounders and scoundrels.

Alecia Simmonds: Absolutely. I mean what they’re actually doing in some respects, they’re turning private tragedies into very public cautionary tales.

Tamson: So, Sarah, I mean, she was feisty but she was pretty lucky too. I mean, she came away 100 pounds richer. What kind of life could she have expected with that kind of money?

Alecia Simmonds: Well, for any other woman of her class, her prospects would have been slim. But, Sarah had been keeping a secret. It could’ve actually undermined her whole case. I know, OK. Well, because, as the trial went ahead, Sarah and her barrister friend, Wentworth, were already expecting a child.

Tamson: No way. This is William Wentworth. He’s the drafter of the constitution and founder of Sydney University and upstanding member of colonial society, you’d think.

Alecia Simmonds: Yah, I know.

Tamson: Wouldn’t that prove Captain Payne right when he argued that Sarah was unchaste?

Alecia Simmonds: Precisely, that was my question. Because it seemed to me like one of the big contradictions of the suit. I mean, even Payne’s defence barrister makes a series of sly remarks about Sarah looking pale and ill. I mean, he’s really good friends with Wentworth so he knows that Sarah’s pregnant. But as I read more cases, I just kept on coming across more and more women rocking up to court with a child on their hips. And the crazy part about it is that they win. So, this didn’t mean that illegitimacy was socially acceptable it clearly wasn’t. It just means that the courts were offering compensation for a lifetime of shame. And you can still find remnants of it today.

Alecia Simmonds: So, if you go to Sarah’s House in Vaucluse, one of Sydney’s wealthier suburbs, you’ll see that she moved up in the world. But the house itself carries some of her shame.

Mel Flyte: Because the house itself is open to the public today.

Tom Allinson: This right here.

Mel Flyte: Yeah. So, this empty corridor is where you would have entered the house.

Alecia Simmonds: We’re standing in Sarah’s home with Mel Flyte, the curator of Vaucluse House. It’s now a museum.

Mel Flyte: We’re not always dealing with the primary sources, we tend to kind of try and interpret her through the house and her effects.

Alecia Simmonds: But Sarah’s house is missing something crucial – a front door. Where there should have been a grand entrance – there was hallway leading to a wall.

Mel Flyte: And you can imagine entering through here you would have been presented with a vast hallway two stories high, gothic arch, very grand staircase at the end but it didn’t go ahead.

Alecia Simmonds: I think this lack of a front door tells us something important about Sarah’s status.

Mel Flyte: I think given her position in society it wasn’t really acceptable for perhaps many of Wentworth’s business or political associates to make the journey out here to Vaucluse House because of Sarah’s reputation. It’s extremely isolated, It’s about two and a half hours by horse and carriage and then everyone in society was aware of Sarah and the children born out of wedlock.

Tamson: So even after winning her Breach of Promise case, Sarah never recovered her reputation?

Mel Flyte: Sarah was seen as a fallen woman and, in a sense, there was no redemption for a fallen woman. They say that when a woman falls she falls forever.

Tamson: So, Sarah won legally but she was punished socially. It makes me think that unmarried mothers were a big problem for the state.

Alecia Simmonds: Absolutely. I mean in Australia there are no poor laws to provide, you know, for abandoned women and their children. So, women with children were actually using the action as a form of maintenance, like we have today.

Hsu-Ming Teo: If you’re in a situation where, if you are financially independent or you’re in a society where there is a welfare state and the government will take care of your kids for you out of wedlock, to use an old-fashioned term, right, the need for marriage is not really that, I guess pressing anymore.

Alecia Simmonds: And with the huge changes that you see at the end of the 19th century, we get to a place where women were far less dependent on men for marriage and child maintenance.

Emmeline Pankhurst: The militant suffragists, who form the Women’s Social and Political Union, are engaged in the attempt to win the parliamentary vote for the women of this country.

Radio Host: Now, can you remember the day that you first voted?

Guest: Oh yes, we were rather excited with the idea that we had the franchise.

Alecia Simmonds: So, women started to work en masse, especially, obviously, as the men went off to World War One, there’s an expansion of women’s public freedoms, public rights. I mean, suddenly, they’re in the public sphere.

Tamson: So, what did that mean for breach of promise?

Alecia Simmonds: Look, I first started to notice these changes when I came upon a woman, just a little bit before the First World War, who claimed 10,000 pounds for every dinner that she cooked her partner whom, you know, she had been courting and then he jilted her.

Tamson: What kind of meals? I mean, I know it’s not relevant but we’ve got ten thousand of them.

Alecia Simmonds: I reckon it would’ve been stodge I’d say, but compensable stodge. So, she said it was over, I dunno, I think it was an 18 or 19-year engagement.

Tamson: They were living together all that time?

Alecia Simmonds: Yeah! And I just love the fact that she’d actually gone, well you know that actually wasn’t a labour of love, you know the love didn’t end up happening, it’s just pure labour, so I want money back.

Tamson: So, it sounds like these Breach of Promise cases allowed women to start to redefine love and marriage. I mean, they’d started to understand the economic value of their labour in relationships, is that right?

Alecia Simmonds: Yeah and it’s pretty extraordinary because its long before second-wave feminists, particularly in the 1970s, did so. There’s a lot of women who answer ads in the paper, where the men will put an ad in saying that they want a housekeeper but with a view to marriage, that’s a really common advertisement. And so, the women will go along thinking that they’re going to be married and think they’ll be jilted and so they start to claim back that housework. This all happens, in the early twentieth century which is also the exact same moment when courtship itself also becomes commodified.

Dating culture starts to emerge. When love moves from the front porch to the back seat.

Tamson: What does that mean?

Alecia Simmonds: I mean, when courtship, whose only goal previously was to find the right person to marry, starts to morph into dating. And surprisingly, as Hsu-Ming told me, that was tightly bound up with economics.

Hsu-Ming Teo: Because courtship is not a lot about consumption, right. Whereas when you when you have dating and that arises in the early 20th century, dating takes place in the public sphere but it’s not under the supervision of, family. Courtship is much more in the open, the eyes of people are on you. Dating takes place in bars, restaurants, cinemas, cars…These are private spaces in public and they’re very much fashioned around consumption as well.

Alecia Simmonds: As industry became better at producing things, it needed us to consume more.

Commercial 1: Don’t risk offending, take a daily bath with Lifebuoy.

Hsu-Ming Teo: You buy shampoo, you know. You buy aftershave to make yourself smell nicer.

Commercial 2: Doctors prove that Palmolive beauty care can bring you a lovelier complexion in 14 days.

Hsu-Ming Teo: You buy stuff to, to ready yourself for the date.

Commercial 2: Fewer tiny blemishes, less oiliness.

Commercial 3: Blue clinic shampoo, leaves hair beautifully healthy.

Commercial 2: Oiliness.

Commercial 3: Brilliantly clean.

Commercial 2: Added softness.

Commercial 3: Too clean for dandruff.

Hsu-Ming Teo: And then the date itself involves consumption because you’re going somewhere, you’re paying money to have a good time and all of that and consumption of course is about is about pleasure as well, about hedonism.

Tamson: If at this point women could pick themselves up and brush themselves off after being jilted and date someone else, is this the moment the breach of promise action becomes redundant?

Alecia Simmonds: Precisely. You know, and historians in America and England and Canada have all argued that by this stage the action’s fallen completely out of step with modern intimacy because by now love, they say, was based more on affection than duty. But the strange thing with my cases is that this is precisely the moment when the action springs to life.

So, there’s a bit more than 200 cases in the 19th century but over 500 in just the first 30 years of the 20th century.

Tamson: So, how do you make sense of that?

Alecia Simmonds: Well, you have to get right down into the case files. One of those files in particular, held a few more surprises than I’d expected…

Darren Wood: Yeah hey its Darren and I’m the proprietor of the Captain Cook Hotel. We’ve been here since 2012. The pubs been here for a lot longer than that, so.

Alecia Simmonds: We’re down at the Sydney pub, where, a hundred years ago, Beatrice Storey met Frederick Chapman.

Darren Wood: Cos in those days you know it was, females didn’t really go to the pub or it was a ladies’ lounge on one side and men on the other.

Alecia Simmonds: Beatrice, we’re going to find out later, had a very famous grandson.

Tamson: Don’t make me wait tell me

Alecia Simmonds: Oh no, you’re going to have to wait. All I’ll tell you at the moment is that around 100 years ago she worked here as a barmaid.

Darren Wood: What would have a lady been doing working in a hotel in 1913. So, you imagine it would’ve been lower working class…

Alecia Simmonds: Beatrice Storey would have absolutely been one of these tough, sassy, worldly, kind of women who’d had sort of seen it all in a bar like that. You know it’s a really rough kind of place, it’s filled with artful dodgers with people who are gamblers people who, who, tell a great yarn, a cracking yarn.

Tamson: So, if she’s a barmaid she’s used to hearing a tall story.

Alecia Simmonds: Yeah, but she didn’t know she would wind up on the end of one that would land her in court. And from what I’ve gathered from archival materials as well as the newspaper reports mostly from the gossip rags at the time I kind of built up this picture of her.

So here she is, she’s 30 years old, she’s working at the bar and in swaggers Frederick. It reeks of smoke, everyone’s drunk and you’ve got the 5pm swill. He tells her a bunch of stories. Had a big win at the track. He’s loaded with money, or so he says. He’s a widower. Says he’s been married before but he says that he’s good to his word. And they’re on. After a month of giddy infatuation, he gives her a ring. A promise. A few months later, the day before the wedding he tells her not to be late to church.

Nothing he’s told her is true. So, the day of the wedding he calls to say his ex-wife is actually alive. She’s furious. He comes crawling back. The story about his ex-wife, he explained, was just another yarn – in fact he confesses, well look I just got cold feet. So, he wants Beatrice back now. But after having quit her job, organised furniture for the new house and paid for the wedding, she’s unemployed, humiliated and all the poorer for it. She won’t have it. But she will take him to court.

Tamson: Well yeah, it sounds like she’s got a good case. But what was her proof?

Alecia Simmonds: Well yeah, I mean she did. She had a clear broken promise and you see that in the love letters. You also see that in all the material goods that he gives her, you know the wedding ring for instance becomes proof of that, the furniture, these kind of financial investments are converted into legal evidence. So, she wants a return on that. And then on top of that she claims bodily injuries for her broken heart. And the jury of course is entirely convinced of this and they award her 350 pounds damages, which is more than 200,000 dollars in today’s money.

Tamson: But you, you said they ended up marrying, is that right?

Alecia Simmonds: Yeah and that was quite common, weirdly. But, if they hadn’t married then one of Australia’s prime ministers in the 1990s, would never have been born.

Tamson: What? Who? We’re not talking about John Howard?

Alecia Simmonds: Paul Keating. Yeah, Beatrice Storey was Paul Keating’s grandmother. So, the weird thing was that he himself was also embroiled in a breach of promise action in 1973 with a woman called Christine.

Tamson: Seriously.

Alecia Simmonds: It runs in the family, Tamson. They settled out of court, this is Paul and Christine, but it later became a huge scandal in parliament, kind of similar to the Barnaby Joyce scandal you know, that we’ve just recently seen. That sort message that it sends is like, you know, if you can’t govern your own private life then what right do you have to govern the country?

Tamson: Amazing how these questions just keep coming back. But there’s another thing – you said back there, that you said she claimed bodily injuries. So, were you saying that you could get compensation for the physical injuries of a broken heart?

Alecia Simmonds: I know right, so this is when something very strange started happening. Reading the case notes in the cases from around the 1910s and 20s, I see that women start coming to court being blind for instance, or paralysed, or incapacitated. One woman claimed that she couldn’t move her arm anymore. All from the nervous shock, of a broken heart.

Doctor 1: Miss Fox became very ill with a serious breakdown and was confined to her room for about 4 months.

Doctor 2: There was a tremor noticeable in the hand. She complained of loss of appetite

Doctor 3: A few days later, she lost the use of her left arm

Doctor 1: A terrible shock to her, her nerves and eyes were affected, she could not sleep and had to take to wearing glasses.

Doctor 2: An inability to concentrate.

Doctor 3: It seemed obvious that the cause must be the fact that she had been jilted and the shame of her condition.

Stephen Garton: The war plays a great role in popularizing the sort of language of nervous illness and nervous disease.

Alecia Simmonds: This is Stephen Garton, historian of sexuality and medicine at Sydney University.

Stephen Garton: Doctors are beginning to say well we’ve seen from the war that nervous illness is a serious problem…everyone was talking the language of nervous illness, war neurosis, shell shock, that language was right out there

Tamson: Wow, so women would use language like this to prove they’d suffered from a broken promise? And that won them more money in damages?

Alecia Simmonds: Look a little bit more, I mean, usually the law awards the greater sum of damages for bodily injury, but in this case the court records show that they’re awarding the big bucks for emotional suffering. And in fact, the physical stuff was smaller.

But it seems it was more about having to prove in some ways that they’d actually suffered at all – in the 19th century it was just assumed that a woman had suffered. But by the early 20th century, you see them starting to prove it in these very corporeal ways. And I think that that’s simply because they are just suffering a bit less. Why, well I guess cos they could now work, the wages were increasing and the welfare state is slowly starting to emerge.

Tamson: So, hang on, they’re suffering less so they’re claiming bodily injuries.

Alecia Simmonds: I think its proof. You know, they need proof now. And at the same time, there’s a new push which sees women’s main function as having children, and then you have Freud’s ideas about repressed desires causing neurosis. So, all of this results in any kind of deviation from motherhood being seen as slightly pathological, even dangerous.

Stephen Garton: Suddenly the spinster and the bachelor get problematized as psycho-sexual deviants who are not living a full life and therefore prone to all sorts of nervous illnesses because of their excessive repression. And’s why a lot of women and men start going off to psychotherapists because they’re worried that they might be deviants because they haven’t found their marriage partner or it’s not working out or their marriage is unhappy and it’s not companionate.

Alecia Simmonds: And it’s the expectation of affection more than duty that you see, sort of, from the 1930s on and then in the post-war period, 1950s, the expansion of the welfare state starts to undermine the foundation of breach of promise. Up until then I’d had a lot of cases, but by the 1950s they really start to dwindle.

Stephen Garton: We don’t need the law coming in. We’re policing ourselves through languages like psycho analysis and sexuality and sexual repression. We take ourselves off for psychotherapy. As you move further into the 20th century that sort of accelerates with the concept of sexual liberation.

Alecia Simmonds: And so sexual liberation really changed our idea of love.

Hsu-Ming Teo: Nowadays it’s like, you know, your partner has got to be your best friend. And one of the things that you want from a love relationship is obviously intimacy, otherwise what’s the point. Otherwise it’s just sex. And I think that’s one of the interesting things as well. Over the course of the 20th century love has changed from having a spiritual meaning, from the 19th century into, it’s become sexualized. And then at the end of the 20th century it’s been decoupled from sex.

Alecia Simmonds: So, by the 1970s, the government put an end to Breach of Promise along with the sweeping reforms of the Family Law Act and no-fault divorce. The same state that was once so insistent that everybody get married was now retreating from the bedroom. Clive Evatt, who we heard from earlier, was one of the last barristers to practise the law in its modern incarnation in the 1950s and 60s. And when they got rid of the law, it was surprisingly him that needed a few tissues.

Clive Evatt: They abolished it and it broke my heart. I was building up a huge practice. Ah shit.

Alecia Simmonds: Clive comes from a big Labor family. He’d made it his business to defend the broken-hearted working-class. He took the cases on spec. But he got paid when he won, and he usually won, and the juries awarded huge damages.

Clive Evatt: I’ve had up to 25000 pounds. That would pay for a two-story house in Double Bay on the water. Shit that was big money.

Alecia Simmonds: That was the compensation his clients would get. This was a typical case.

Clive Evatt: She was the maid of Dr So-and-so in Vaucluse and he started to want to become intimate with her and he asked her to marry him and she said she would.

Alecia Simmonds: But she needed corroboration.

Clive Evatt: Mum’s listening at the window or behind the sofa or outside the door.

Alecia Simmonds: Remember the love letters in Sarah’s case? Well that’s not a big part of evidence anymore. Now it’s the murky world of verbal evidence. But what stayed the same was that everyone had to play their part.

Clive Evatt: She couldn’t sleep at night, she doesn’t go out so much as she used to, stays at home. Changed her appearance a bit with sunglasses and changed her hair colour and style. Felt embarrassed in going to places where she was known because people were talking about her fiancé calling the wedding off. Some people rang up to commiserate with her. She said all that. Financial loss.

Alecia Simmonds: By the 1950s, men had stopped using the defence of a lack of chastity. It was much more common just to argue that the break was a mutual decision. The courts now fully recognised what a broken promise meant to a single mum, because if there was a baby involved?

Clive Evatt: Oh yeah, the baby increases the damages right up. One particular case we were there at court with the nurse and the baby and the doctor turned up, he took one look and fled. We never saw him since. He told his solicitor to settle it. It’s hard to fight if the woman’s holding the baby.

When I stopped they said it is a bit rough on the doctors what he did. But it was a scandal in those days. So, everyone, married, you’ve got to understand this, people didn’t live together in the 1950s or 60s. It was unheard of. If you live with a woman she was your wife. Today no one gets married. But everyone got married in those days. It meant something.

Alecia Simmonds: Clive had a hiatus from the bar in the late 1960s. And when he returned in 1981, Breach of Promise had been abolished.

Clive Evatt: I think if you brought a breach of promise case today the jury would say, what the hell are you talking about. Why would you want to marry? Why doesn’t he just live with her?

Alecia Simmonds: In a very practical sense they got rid of it because people had stopped suing on it. And that’s ultimately because it’s based upon this idea, as men had started to argue from the 20th century, that there’s no point in a marriage, if there’s no love.

Hsu-Ming Teo: I’d say most people would say that they get married because of love. Right. And I’d say that whether people are really in love or not, the ideal is always to marry because of love. And that’s not necessarily the case, even into the early 20th century people get married for all kinds of different reasons. It’s about can he provide for me. In some ways, you can afford to marry for love and all of that when you’re economically secure and you’re financially independent. But others who are not in that position have other considerations as well. Like I said, for whatever reasons people might have to get married, the socially sanctioned one is always oh we married for love.

Tamson: You’ve been listening to History Lab, an investigative history podcast by the Australian Centre for Public History at UTS. I’m Tamson Pietsch. Thanks to our collaborating historian Alecia Simmonds.

Alecia Simmonds: I think that discussions like we’ve had are so lovely you know to have, because what they’re about is ethics. We’re talking about an ethics of intimacy. It’s about how you should treat other people.

Tamson: And special thanks to the often-invisible archivists, librarians and curators that helped us bring this history to life – Emily Hanna at State Records, Mel Flyte at Sydney Living Museums and the teams at the NSW and Victorian state libraries. If you want to find out more, head to historylab.net. And next time on History Lab:

Grab: And she said, mother I’m in Broken Hill in Australia. I never expected to find a Titanic memorial in the middle of this dry country.

Tamson: We find out how the Titanic sank in the Australian desert. This episode was produced by Tom Allinson. Our Executive producer is Emma Lancaster. Miles Martignoni is our supervising producer. Sound design by Joe Koning with additional assistance from Miles Martignoni. Marketing and communications by Andy Huang. And special thanks to our voice actors: Pixie Willo, Dave Chivers, Shae Courtney, Rod Chambers, Anthony Dockrill and Sean Britten.

History Lab is made in the studios of 2SER that sit on the lands of the Gadigal people of the Eora nation.We pay respect to their elders, past, present and emerging – who have been telling stories since time immemorial.