Readers of this blog might recall the story of Margaret Lawless' divorce from her husband Nicholas. This came just a decade after her father Patrick Kenny had his own trip to divorce court. In my previous post I wrote about Patrick's wife Catherine (Phelan) - but as mentioned there, she died in 1891 at just 40 years of age. It was Patrick's second marriage (to widow Elizabeth Green, nee Kelly) that went awry. While one could assert that Margaret Lawless came out of her divorce with her reputation enhanced, the same cannot be said for her father in 1896.
The case was covered so well in the newspapers of the day, that I will let you enjoy all the details straight from those involved...firstly from The Age, 28 August 1896:
CHARGES AND COUNTER CHARGES.
ALLEGATION OF CONSPIRACY.
A HUSBAND'S ACTS OF CRUELTY.
Some remarkable evidence was given in the divorce suit of Kenny v. Kenny and Quinn, which was heard by Mr. Justice a'Beckett in the Supreme Court yesterday. The petitioner was Patrick Kenny, of Trafalgar, Gippsland, farmer and hotelkeeper, and he sought a divorce from his wife, Elizabeth Kenny, on the ground of her adultery with Michael Quinn, at the Nelson Hotel, Trafalgar, on the 3rd April last. Respondent denied the allegation of misconduct, and said if adultery had been committed it was connived at by petitioner. She also alleged that her husband had been guilty of cruelty.
Mr. Forlonge appeared for petitioner, and Mr. Farlow (of Messrs. Farlow and Barker) for respondent. Petitioner gave evidence that his first wife died in 1891, and he was married to respondent on 20th January, 1895. At that time he was the owner of two hotels at Trafalgar, and a farm two miles out of the township. In February last the tenant went out of one of the hotels— the Nelson— and he became the landlord, while his wife remained on the farm. On last Good Friday (3rd April) ho visited the farm, but his wife was not there. He returned to the Nelson Hotel, accompanied by his son Jim, and about 11.30 p.m. found his wife and the co-respondent Quinn in a bedroom together. Quinn jumped out of bed and said, " You will excuse me, Mr. Kenny ; I made a mistake." Mrs. Kenny simply said, " My word is as good as yours ; you have no witness. " Then she left the room. Quinn had his hat and coat off. About an hour after this he was in the bar, when he heard a noise as of the bedroom window being smashed. He ran into the room and found Mrs. Kenny still there. She was in her nightgown and had thrown a jug through the window.
Mr. Forlonge: "What occurred next?— She struck me with a basin. (Laughter.)
Did you speak ? — I hadn't time. I caught her round the waist and she called out " Murder !" Then Quinn came running into the room, and I told him to take her away. I said, "You have a better right to her than me."
Did he take her away ? — He did. About a quarter of an hour later I saw her in front of the hotel. She had a brick in her hand, and she called me names.
Mr. Justice A'Beckett : I presume she was dressed ? — She had only her night dress on. Four or five days later she came to the hotel, and I told her to clear out. She would not do so, and I struck her twice with a whip. Then I said she could stop at the farm till the divorce case was over.
Mr. Justice A'Beckett : How came you to go into this bedroom?— I went to show the boy where he was to sleep. I did not have a candle when I entered. I struck two or three matches.
Cross-examined by Mr. Farlow: Quinn had broken in a couple of ponies for me. I did not leave him in charge of the hotel on Good Friday.
When Quinn said "Excuse me," did you excuse him? — Certainly not. I tried to stop him, hut he rushed out.
How many times have you horsewhipped your wife? — Only on the occasion I have mentioned.
Were you practically forced to marry your wife?— She had a say in it as well as me. (Laughter.)
Had you been living with her before you married her? — She had been living with me.
And did not a priest see you about the matter? — They always do." (Laughter.)
James Kenny, aged 14, son of the petitioner, gave evidence bearing out that given by his father as to what occurred in the bedroom on the night of 3rd April. He could not remember what Quinn said to his father, or whether Mrs. Kenny was dressed.
Thomas Phelan, farmer, said that on Good Friday last he was at the Nelson Hotel, Trafalgar, and for some time heard the voices of Mrs. Kenny and Quinn coming from the direction of a bedroom. Kenny came in about 11 o'clock, and white they were having a drink they heard the smash of a window. Kenny ran into the bedroom and pulled his wife out. When witness arrived at the hotel Quinn told him he had been left in charge by Kenny.
Cross-examined by Mr. Farlow: When he heard the voices in the bedroom he did not suspect anything improper. Quinn told him he was taking in a drop of drink to Mrs. Kenny ; that Mrs. Kenny came in the worse for drink, and that he locked her up in one of the rooms. It was dark, and witness could not see very well how Mrs. Kenny was dressed. She seemed to have on something that was dark in color.
This closed the evidence for the petitioner.
Respondent gave evidence that early in February, 1895, petitioner came home very drunk one evening, and because she refused to go to bed before having said her prayers he came out of his room with a whip and flogged her round the diningroom. While she was ill in bed on another occasion he threw a dish of water over her because she did not get up at the hour he wanted her to in order to milk the cows. Ho assaulted her brutally on other occasions, threatened to throw her into the creek, and also said he would clear out. She never received any money from him either for the keep of the house or the buying of clothes. Petitioner had kicked her in the face, and had flogged both her and the children. One night the boy Jim told her his father was going to murder her. She got under the bed, and petitioner then came into the room and tried to tear her night dress off her. He kicked her in the face with his bare foot. Then he caught her by the throat and flogged her for something like half an hour before she was able to escape from him. After that he put her box on the verandah and told her to take it and get off the premises. When she approached the verandah to take the box he struck her with the whip. All night long this continued, and at 9 o'clock next morning she took refuge with a neighbor. She showed the marks caused by the flogging she had received to Constable Brotherton and to some of her neighbors. Petitioner went away to Brown's Hotel in November for three days. On the Sunday, as she wanted to take the children to church, she called on him, told him what she intended doing, and asked him for 6d. to put in the plate. He cursed her, and refused to give anything. On another occasion he had £8 in his pockets, and she took it away to the farm for safety. Shortly afterwards he accused her of stealing it. She said she would go to the farm and get it, but he caught her by the throat, threw her against a wall, spat in her face and kicked her. Last February he again beat her with a whip, and she showed the marks of the whipping to Constable Brotherton and others.
It was about a fortnight before Good Friday last that she met Quinn for the first time. Prior to that date she never had any private conversation with him. Between 2 and 3 o'clock on the afternoon of 3rd April she went into Brown's Hotel, and was standing at the door, when her husband rode by. She spoke to him. Shortly afterwards Quinn asked her to have a drink. She said she would have a glass of lemonade. Quinn said he would not pay for "soft stuff." Mrs. Brown, who was in the bar, said, " You won't get anything else here." Witness then went to her husband's hotel to look for her shoes, and Quinn kept following her as she went through the rooms there, and asking her to have a drink. In the course of her search she went into her husband's room. Quinn stood at the door and said, "What the — are you doing there?" After much persuasion she at last consented to have a glass of whisky. Immediately after drinking it her head felt queer. She sat down in the billiard room, which was about 12 yards from the bedroom, the window of which was subsequently smashed, and she became unconscious. When she recovered she found herself on a bed in this room, and someone was endeavoring to turn her on to her back. She did not know who the person was. She jumped up at once and rushed to the door, but found it was locked from the outside. She screamed out, and then threw a jug through the window. She was fully dressed. After she threw the jug through the window her husband unlocked the door. Sho went to walk out, when he caught her by the hair, and cried out, "By the living God, I'll kill you." She once more became unconscious, and when she recovered she found herself in the roadway. She went to Brown's Hotel, and stopped there that night. Quinn came to the farm after she had been served with the citation, and she ordered him off. She remembered seeing James Kenny hand money to this man on one occasion.
Cross-examined by Mr. Forlonge : She had taken drink occasionally. On her marriage she took the pledge and kept it for six months. At the end of six months she went to Melbourne for a couple of days, as her husband had not spoken to her for a month. While in Melbourne she took drink. It was her husband who drove her to drink.
Mary Brown, formerly licensee of the Critorian [Criterion] Hotel, Trafalgar, said her house adjoined the Nelson Hotel. Both Mr. and Mrs. Kenny took drink. She remembered Mrs. Kenny calling at the hotel on 3rd April, and being asked by Quinn to have a drink. Mrs. Kenny refused, About 12.30 a.m. on the following day she heard a crash as of a window being smashed at the Nelson Hotel, and heard Mrs. Kenny calling out "Murder !" Running outside, she saw respondent standing in front of the hotel. The woman seemed to be stupid, and out of her mind. She was fully dressed, save that she had no hat on, and her hair was pulled down. Kenny subsequently told her that he had caught his wife in bed with Quinn. He said it was the best evidence he could have. For three weeks afterwards Quinn remained in the town, visited the Nelson Hotel as usual, and used to talk to Kenny on the verandah. Apparently there was no change in their relations. Witness had seen Quinn strike his wife with his fist and tear the sleeve out of her dress, while Mrs. Kenny had also shown her bruises on her arms and shoulders. She had seen Mrs. Kenny's arms black and blue, the marks apparently being caused by a whip.
Mr. Forlonge : Kenny was the owner of your hotel ?— Yes.
And did he turn you out?— No; he put the bailiffs in.
Amy Brown, daughter-in-law of the last witness, gave evidence that between August, 1894, and June, 1895, she frequently visited Trafalgar. She had seen Quinn talking to Kenny on the verandah of the Nelson Hotel on one occasion subsequent to last Good Friday. She once saw Kenny assaulting his wife. On her interfering, he said he would chop her down with an axe. Mrs. Kenny was quite sober when this occurred.
Alice Rose King, a girl about 14 years of age, said she lived at Trafalgar. On the afternoon of last Good Friday she went into the Nelson Hotel to see Mrs. Kenny. She found her lying on the billiard room floor. Witness called Miss Collins, and the two of them tried to lift respondent up, but could not do so, she seemed to be so drunk. Quinn came in and punched them out of the place. This was about half an hour after Mrs. Kenny's visit to Brown's Hotel. During the evening witness heard a noise as of someone being dragged along the passage into a back bedroom of the Nelson Hotel. The door of the room was locked. She heard Mrs. Kenny crying, and also heard Quinn swear at her and tell her to get some whisky. On the same evening, but at a later hour, she heard a window smashed in the hotel. Since then she had often seen Quinn talking to the petitioner on the verandah of the latter's hotel.
James Kenny, son of the petitioner, was recalled, and, in answer to Mr. Justice A'Beckett, said he had seen his father use violence towards respondent on two occasions. The first was when he threw a dish of water over her, and the second time he struck her with a whip.
Petitioner, recalled, denied that he had been guilty of violence towards his wife. He once slapped her face.
Mr. Justice A'Beckett: That would not raise wales on her body. Do you persist in saying that you were never brutally violent in your treatment of your wife ?— I do.
Mr. Justice A'Beckett : I don't believe you.
This closed the evidence.
Mr. Justice A'Beckett said he thought petitioner had been guilty of cruelty to his wife. He was of opinion that the adultery was proved, and that Kenny was not at all responsible for anything connected with that act. Apparently it arose from his wife getting drunk and this man Quinn taking advantage of her condition to do what he liked with her. The facts of the case negatived the idea that any kind of conspiracy had been entered into between the husband and Quinn to bring about this result. There were some suspicious circumstances, but he had come to the conclusion that there was no conspiracy in reference to the adultery. While he thought there was this act of misconduct he thought the husband was guilty of cruelty on several occasions. That gave the court a discretion to refuse to make a decree. He was not satisfied, however, that he should refuse to grant a decree on that ground ; he had some doubt that the act contemplated that where the husband had been guilty of cruelty in circumstances such as were disclosed in this case a decree should be withheld, and he would be glad to hear counsel on the point.
Authorities were then quoted by Mr. Forlonge and Mr. Farlow, and at the conclusion of arguments Mr. Justice A'Beckett reserved his decision.
On September 1, Justice A'Beckett handed down his findings on the case, outlined in the Warragul Guardian. Though I'm not sure that I would have come to the same conclusion from the evidence as the judge did in the second last sentence:
In the Third Civil Court on Tuesday, Mr Justice A'Beckett gave his reserved judgment in the divorce cases of Kenny (Quinn, co-respondent), and Jackson v. Jackson (Duncan and Main (co-respondents)
Patrick Kenny, of Trafalgar, farmer and publican, had petitioned for a dissolution of his marriage with Elizabeth Kenny, on the ground of her adultery with Michael Quinn.
His Honor found that the wife had committed adultery, and that the husband had been guilty of cruelty. but he did not consider that this cruelty had in any way conduced to the adultery. Edwards v Edwards (Probate Division, p 33), confirmed the impression under which he reserved judgment, that in the circumstances, he had a discretion to grant or withold the decree. It was also an authority for the course he proposed to take, viz., granting the decree subject to the petitioner making some provision for the wife. His Honor fixed £2 10s per month as adequate provision, having regard to the husband's means and the wife's ability to earn her living. His Honor made the following order: That on the petitioner's proctor handing to the Associate within four weeks a deed duly executed, whereby petitioner undertook to pay to respondent £2 10s per month while" she remained unmarried, an order for the dissolution of the marriage will be granted ; in default of his doing so, the petition to be dismissed. His Honour added: As the wife's one offence may have been committed while she was helplessly intoxicated, the petitioner might reasonably prefer to take her back, and if he end she were to reform their habits-as, from the evidence, it appears they are able to do-they might live harmoniously together. No order would be made as to costs.
Sources:
"A REMARKABLE DIVORCE CASE." The Age (Melbourne, Vic. : 1854 - 1954) 28 August 1896: 7. Web. 30 Aug 2021 <http://nla.gov.au/nla.news-article190611818>
"TRAFALGAR DIVORCE CASE." Warragul Guardian (Warragul, Vic. : 1895 - 1900) 4 September 1896: 2 (Bi-weekly). Web. 30 Aug 2021 <http://nla.gov.au/nla.news-article67439225>.
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