1902 Encyclopedia > Divorce


DIVORCE is the dissolution of the relationship of marriage. Few social questions are surrounded with greater difficulty than this. For what causes divorce should be granted, and whether complete divorce should be granted at all in the sense of authorizing the spouses to contract new marriages, are points on which civilized societies have arrived at very different conclusions. Modern practice and opinion are to traced mainly to two sources of principle, viz Roman law and the Christian religion. The effect of the spread of Christianity was to reinvest marriage with the religious character from which it the later law of Rome it has completely escaped ; and the history of divorce in modern times has been the gradual decay of the restrictions which were thought appropriate to the religious character of the instruction of marriage. At the same time these restrictions have nowhere disappeared. The opinion of society visibly fluctuates between the belief that marriage is a civil contract only and the belief that it is a contract of a permitted by human legislation. Again, divorce appears to be regarded sometimes as a penalty against the offending spouse, sometimes as a right to which the innocent spouse is entitled. It will be granted only if a matrimonial offence is proved to have been committed, but it will not be granted if such an offence has been committed on bothsides. Hence a certain amount of inconsistency in legislation about divorce, which is in no system more remarkable than in our own, founded as it is on the doctrines of the canon law, modified by the opinions of secular judges, and altered by Acts of Parliament.

In Roman law marriage was regarded as a voluntary union which might be terminated at any time by the consent of the parties. No legal process was required, although the abuse of the power of divorce was sometimes punished. If a wife had not passed under the manus of her husband, her father might withdraw her from the union against the wishes of both parties. A constitution of Antoninus Pius limited this power. Until the of Justinian divorce by consent of both parties does not appear to have been subject to any restriction. Justinian, however, allowed it only in three specified cases, viz. for impotency, or when either party desired to enter on a monastic life or was for a long time in capacity. "At a later period Justinian enacted that persons dissolving a marriage by mutual consent should forfeit all their property and be confined for life to a monastery, which was to receive a third of the forfeited property, the remaining two-thirds going to the children of the marriage. This severity, so much at variance with the Roman spirit, indicates the growing power of the clergy (ut non Dei judicium contemnatur)." (Hunter’s Roman Law, p.500.) These prohibitions were repealed in the next against the wish of his wife was a power much more likely to be abused than the of dissolving marriage by mutual consent. Although the legal right was recognized, it is said not to have been acted on for a period of 500 years, and Spurious Carvilius is said to have been the first who put away his wife for barrenness. Harshness in the exercise of the power was condemned by public opinion, and sometimes punished by the authority of censors. L. Antonius, a senator, was expelled from the senate for a harsh divorce of a young wife. The wife who had not come repudiating the marriage at will. Later legislation curbed this excessive licence. By the lax Julia et Papia Poppaea, a husband divorcing a wife for adultery might retain one-sixth of her downy; for any smaller offence, only one-eight. When a husband was guilty of adultery he had to repay the dowry at once; if the fault were less serious, in six months. Constantine allowed the wife to divorce the husband in the following cases:—1, for murder ; 2, for being a preparer of poisons ; 3, for violating tombs. Just causes for repudiation by the husband were—1, adultery ; 2, preparing poisons ; 3 being a procuress. A wife divorcing her husband for other than the specified grounds forfeited the dowry, and might be punished by deportation. Similarly a husband lost his interest in the dowry of his wife by an injurious divorce. Similar provisions are to be found in the legislation of Honorius and Theodorus (421 A.D.), of Theodosius and Valentinian (449 A.D.) Justinian settled the grounds of divorce as follows:— The wife could divorce her husband—1, for conspiracy against the empire ; 2, attempting her life ; 3, attempting to induce her to commit adultery ; 4, wrongfully accusing her of adultery ; 5, taking a paramour to his house or frequenting any other house in the same town with a paramour. On a divorce for these reasons as wife recovered her dowry, and obtained the husband’s portion as well. If she divorce for other reasons she forfeited her dowry, and could no marry for five years, as in the legislation of Theodosius and Valentinian. So a husband might justly divorce his wife for—1, concealment of plots against the empire ; 2, adultery ; 3, attempting her husband’s life, or concealing plots against him ; 4, going to baths of banquets with other men ; 5, remaining from home against her husband’s wish ; 6, going to circus, theatre, or amphitheatre against his wish. In such cases the husband retains the dowry for life, or if he has no children absolutely. In other cases penalties as fixed by previous legislation of Theodosius and Valentinian apply. The grounds for divorce specified in these various enactments are an interesting commentary on contemporary manners.

These experiments in divorce display anxiety to regulate the relationship of marriage as a purely civil institution, with a view mainly to public decorum and the comfort of individuals. When marriage had manifestly failed it was no longer worth preserving, and it had failed when either of the parties showed a desire to withdraw from the alliance. At the same time an innocent party must be protected against the caprices of an unjust spouse, and such protection was sought by the device just described. It is a remarkable illustration of the Roman view of marriage that, in view of what must have been the great social evil of capricious divorce, the right of either party to dissolve the marriage was never successfully questioned. From the pure Roman to the canon law the change is great indeed. The ceremony becomes sacred, the tie indissoluble. Those whom God hath joined let not man put asunder, was the first text of the new law of marriage, and against such a prohibition social convenience and experience pleaded in vain. While marriage once created became indissoluble, the impediments to marriage also multiplied. The canon law annulled a marriage ab initio for causes which we should now consider wholly inadequate. The tie of consanguinity was extended to the eighth generation ; and affinity, it was held, might be established by adulterous intercourses without marriage. The power of dispensing with canonical disabilities, and the power of annulling marriage on the ground of such disabilities, belonged to the church, and were important aids to its influence in society. In countries which have embraced the doctrines of the Reformation, a relaxation of the law of divorce has generally followed the changes of religion—whether immediately, as in Scotland, or indirectly, as in England. In Roman Catholic countries the theory of the canon law still rules.

The history of divorce in English law is particularly interesting. Down to the passing of the Divorce Act of 1858, the theory of the law of England was the same as the theory of the Roman Church. There were attempts during the period of the Reformation to introduce a greater licence of divorce, and in the Reformation Legum Ecclesiasticarum (a code of ecclesiastical law projected by a royal commission, but never enacted) the leaders of the Reformation sanctioned principles which would even now be considered liberal. Divorce was to be granted for adultery, and the innocent spouse was to be permitted to marry again. Other grounds for divorce were specified such as desertion and continued absence, and savageness of temper. Separation a mensa et thoro was to be superseded by this more complete remedy. And the more advanced Reformers advocated even greater liberty of divorce. The nature of their proposals, and the arguments by which they reconciled them with the language of Scripture, may be studied in Milton’s tractate on the Doctrine and Discipline of Divorce, addressed to the Parliament of England. But the law remained unchanged. The constitution of marriages belonged to the jurisdiction of the ecclesiastical courts. The tie was indissoluble. The marriage, indeed, might be declared null and void in certain cases, e.g., where the parties were within the prohibited degrees of consanguinity or affinity. This proceeding was not a dissolution of marriage so much as a declaration that no real marriage had taken place between the parties. Divorce a mensa et thoro was granted for adultery and cruelty. Here the marriage, being originally good, was not dissolved, but a separation was ordered either for a limited or an indefinite time. The spouses were not permitted to marry again. But while the law remained unchanged, the practice of granting complete divorces by private Acts of Parliament had come into existence. The legislature did inn particular cases that which it refused to do by a general law. Two conditions were in general necessary to satisfy Parliament. 1st, A divorce a mensa et thoro had to be obtained from the ecclesiastical court. 2d, An action for damages had to be brought against the adulterer in the civil court for criminal conversation. The latter was not absolutely necessary, and appears to have been regarded as a safeguard against divorce being granted to persons who had connived at the acts of adultery, or had themselves been guilty of misconduct in the marriage state. The passing of these Acts through Parliament became a matter of as much formality as a proceeding in an ordinary law court. The two Houses passed standing orders on the subject, under which bills on divorce were argued the law lords by professional advocates, and generally neither this House of Commons nor the lay lords interfered. By this characteristic evasion, the law of England completely changed its practice while still maintaining its ancient theory of divorce. Probably the anomalous character of the remedy might not have brought about a change but for the great practical evil of the expense attending the proceeding. Three suits—ecclesiastical, civil, and parliamentary—were necessary. Divorce became a remedy for the rich. The poor were driven to bigamy. Yet it was not until 1857—and not then without determined resistance—that this disgraceful state of things was changed. A commission appointed in 1850 recommended the establishment of a regular court for divorce, and that divorce should be granted for the wife’s adultery but not for the husband’s unless aggravated by other offences. Bills constructed on these principles were introduced into Parliament, and successively abandoned or lost, until in 1857 the ministry of the day by great exertions carried the bill which is now the Act of 20 an 21 Vict. c. 85. Notwithstanding the hostility it excited, the bill proposed little more than a consolidation of jurisdictions ; and proceedings in the Divorce Court have now, with few exceptions, the same object and result as the former proceedings in Parliament and in the civil and ecclesiastical courts. The action for damages for crim. con. is represented by the adulterer being made a party to the husband’s suit. Full divorce is granted on the principles usually recognized by the House of Lords ; and the other remedies are such as might formerly have been granted by the ecclesiastical court.

The following statement embraces the most important provisions of the Act:—

All jurisdiction in matters matrimonial (i.e., in respect of divorces a mensa et thoro, suits of nullity of marriage, of jactitation of marriage, for restitution of conjugal rights, &c.), shall ceased to be so exercisable, and shall in future be exercised by a new court, to be called the "Court for Divorce and Matrimonial Causes. "The Lord Chancellor and other judges are named as members of this court, along with the judge of the new constituted Court of Probate, who is to be the judge ordinary of the new court. Divorce a mensa et thoro is under the name abolished, but a new remedy called judicial separation is introduced, which shall have the same effect, and such other legal effect as in the Act mentioned. This remedy may be obtained by either husband or wife, on the ground of adultery or cruelty, or desertion, without cause for two years and upwards. At the same time it is provided that a wife by her husband may apply to a police magistrate or justice for peace for a protection order, by which her earnings and property acquired since the commencement of the desertion may be protected from her husband and his creditors, and belong to herself as if she were an unmarried woman. In all cases except dissolution of marriage, the divorce court shall act on "principles and rules which in the opinions of the said court shall be as nearly as may be conformable to the principles and rules on which the ecclesiastical courts have heretofore acted," subject of course to the rules and orders the Act. Where a decree of separation has been obtained, in the absence of the husband or wife, as the case may be, it may be, it may be reversed on proper cause shown. In the case of judicial separation, the wife shall be treated in respect of any property she may acquire as if she were an unmarried woman ; on her death it will descend as it would have done if her husband were deal ; and should she again cohabit with her husband, any property she may be entitled to shall be held to separate use, subject to nay agreement she may have made with her husband when separated. So also a judicially separated wife should be treated as the unmarried woman for purposes of contract and in civil proceedings generally. The most important section of the Act is the under which a marriage may be dissolved. "It shall be lawful for any husband to present a petition to the said court praying that his marriage may be dissolved on the ground that his wife has since celebration thereof been guilty adultery ; and it shall be lawful for any wife to present a petition to the said court, praying that her marriage may be dissolved, on the ground that since the celebration, thereof her husband has been guilty of incestuous adultery, or of bigamy with adultery, or of rape, or of sodomy, or bestiality, or of adultery coupled with such cruelty as, without adultery, have entitled her to a divorce a mensa et thoro, or of adultery coupled with desertion without reasonable excuse for two years and upwards. "Incestuous adultery includes adultery committed with a woman within the prohibited degrees of consanguinity and affinity. On a husband’s petition for divorce the alleged adulterer must be made a co-respondent, unless the court permits otherwise, and one of the parties may insist on trial by jury. And the court is to take special care to satisfy itself, not only as to the fact alleged, but as to the existence of anything like connivance or condonation on the part of the petitioner ; and it shall inquire at the same time into any counter charge made against the petitioner. When the court is not satisfied as to the facts, or finds connivance of condonation or collusion, the petition must be dismissed. If the court is satisfied on these points, a decree dissolving the marriage may be pronounced ; but the court shall not be bound to produce such decree, if it finds that the petitioner has been guilty of adultery, or unreasonable delay in prosecuting the suit, or of cruelty, or desertion, or such neglect and misconduct as has conduced to the adultery. The court may decree the payment of alimony by the husband to the wife. The husband may in his petition claim damages against the co-repondent, and such claim shall be tried according to the same or like rules and regulations as actions for criminal conversation at common law, and the damages shall in all cases be ascertained by a jury ; but the court has power to direct the application of the damages, in whole or part, to the benefit of the children of the marriage, or the maintenance of the wife. And the co-respondent, marriage, or the maintenance of the wife. And the co-respondent, if the case is established against him, may be ordered to pay the whole or any part of the costs. In proceedings for judicial separation, or nullity or dissolution of marriage, the court may make interim or final orders as to the custody and maintenance of the children. Questions of fact may be tried before the court itself or a jury, or issues of fact may be directed by the common law court. Every petitioner in a case of judicial separation, nullity, dissolution, or jactitation of marriage, must file an affidavit verifying his petition, and stating that there has been no collusion. In any case of divorce or judicial separation for wife’s adultery, the court may order the settlement of any property to which the wife may be entitled, for the benefit of the innocent party or the children of the marriage. Appeals may be made from the judge ordinary, within three months, to the full court, and from that court of the House of a Lords. By the 57th section, after a dissolution of marriage, "it shall be lawful for the respective parties thereto to marry again, as if the prior marriage had been dissolved by death." Here follows a singular compromise, marking the conflict of opinions through which the Act had to pass. No clergyman of the United Church of England and Ireland shall be compelled to solemnize the marriage of any person whose former marriage has been dissolved on the ground of his or her adultery, or shall be liable to any penalty for refusing to do so. But any minister of a church or chapel so refusing to solemnize the marriage of persons who would otherwise have been entitled to have the service performed in such church or chapel shall permit any other clergyman of the same diocese to perform such marriage in such church or chapel. The common law action for criminal conversation is abolished.

Acts amending the Divorce Act were passed in 1858, 1859, 1860, 1864, 1866, and 1873. The Amendment Act of 1859, by a most unhappily worded section, gives power to the court, after a decree of nullity or dissolution, to revise the marriage settlements, and apply the property to the benefit of the "children of the marriage or their respective parents." It has been held that the court has no power to alter settlements unless there are children of the marriage alive at the date of that order. This Act also makes husband and wife competent and compellable to give evidence touching cruelty or desertion in a wife’s petition for dissolution of marriage.

The act of 1860 contains the following important clause (§ 7). "Every decree for a divorce shall in the first instance be a decree, nisi, not to be made absolute till after the expiration of such time, not less than three months from the pronouncing thereof, as the court shall by general and special order from time to time direct, and during that period any person, shall be at liberty to show cause why the said decree should not be made absolute, by reason of the same having been obtained by collusion, or by reason by material facts not having been brought before the court ;and on cause being so shown, the court shall deal with the case by making the decree absolute, or by revising the decree nisi, or by requiring further inquiry or otherwise as justice may require ;and at any time during the progress of the cause, or before the decree is made absolute, any person may give information to her Majesty’s proctor of any matter material to the due decision of the case, who may thereupon take such steps as the attorney-general may deem necessary or expedient ; and if from any such information or otherwise the said proctor shall suspect that any parties to the suit are, or have been, acting in collusion for the purpose of obtaining a divorce contrary to the justice of the case, he may, under the direction of the attorney general, and by leave of the court, intervene in the suit, alleging such case of collusion, and retain counsel and subpoena witnesses to prove. It" This clause is a most important addition to the securities against collusive suits provided by the earlier Acts. The period of three months has been extended to six by the Act of 1866. These sections have been extended by the Act of 1873 to cases of nullity of marriage. The other provisions of the various amending Acts do not call for notice here.

One or two points in the above summary may be further explained. The greater favour shown to husbands1 petitions for divorce than to wives’ follows with tolerable closeness the principles on which the House or Lords acted in passing private bills. The reason why the adultery of the husband is considered a less serious offence than the adultery of the wife will be obvious to every one. As a matter of fact, wives’ bills for divorce before Parliament were comparatively few, and some circumstance of aggravation was required. The first divorce granted to a wife by Parliament was in Addison’s case in 1801, and the decision was mainly brought about by the masterly speech of Lord Thurlow. It may be added that Parliamentary bills for divorce were not common until the 18th century. After the accession of the house of Hanover they became frequent.

The right to a divorce or separation on any of the grounds mentioned may be avoided by conduct on the part of the petitioner amounting to what is called condonation, or forgiveness, e.g., if after the offence complained of the parties resume cohabitation. But the offence condoned may be revived, that is original right to sue thereon may be restored by a repetition of the offence. Thus a new act of adultery will revive a condoned adultery. So with an act of cruelty. It was also held in the ecclesiastical courts, and appears to be the law, that cruelty would rivive adultery, and vice versa. The question then arose whether an act of cruelty could revive an old condoned act of adultery, or vice versa, to that the two might be pleaded together by the wife in support of her petition for dissolution of marriage. The remedy may also be barred by the connivance of the petitioner, i ,e., his consent, express or implied, to the adultery of the spouse ; and also by collusion, i. e., a conspiracy between the parties, or between one of them and a third party, to obtain a sentence of divorce or separation. The mere fact that both parties desire the same end is not of itself collusion. But where they combine to bring about the offence, or to produce evidence from which the offence may be inferred, or to deceive the court by the suppression of material facts or otherwise, they are guilty of collusion. Recrimination under the old ecclesiastical law is wher the respondent retorts by imputing to the petitioner conduct similar to that complained of. He must come into court with clean hands ; and if he has himself been guilty of adultery he cannot obtained a sentence against has wife for adultery. Recremination ought strictly to be of an offence of the same nature as the one complained of ; of petitioner is said to have compensation in eodem delicto. But under the 31st section of the new Act above referred to, adultery, cruelty, unreasonable delay desertion, and misconduct conducing to adultery are made discretionary bars to divorce,—that is, if they are proved, the court is not bound to pronounce the sentence of dissolution which would otherwise follow on proof of the respondent’s adultery. In a recent case, where the respondent had previously obtained a decree of judicial separation on the ground of desertion, the husband’s petition for dissolution of marriage on the ground of the wife’s adultery was rejected by the court.

The matrimonial suits inherited by the Divorce Court from the old ecclesiastical courts are those for nullity of marriage, for restitution of conjugal rights, and for jactitation of marriage. These suits must be decided according to the principles of the canon law as administered in the English ecclesiastical courts. A marriage will be declared null ab initio when the requisites of a legal marriage have not been complied with. The alleged defect must have existed at the time of the celebration of the marriage. The formal requisites are (1) that the marriage should be celebrated in pursuance of a special licence, ordinary licence, publication of banns, superintendent-register’s licence or certificate, in the presence of a person in holy orders, or a registrar ; and (2) in a parish church or public chapel, or superintendent registrar’s office, or in some building registered for the solemnization of marriages, except when solemnized by special licence (see MARRIAGE.) These rules only apply to marriages in England, and marriage is void only when the requisites are deficient, and known to both parties to be deficient, at the time of the ceremony. The two other requisites apply to all marriages, and if they are wanting the marriages is absolutely void:—(1), the marriages must be between single persons, not being within the prohibited degrees of consanguinity and affinity, and who are (2) consenting and of a sound mind, and able to perform the duties of matrimony . The "prohibited degree" are those set forth in common prayer book, and extend to illegitimate as well as legitimate relations. The ecclesiastical courts had been in the habit of annulling such marriages previous to 5 to 6 Will. IV. C. 54, and until so annulled, in the lifetime of the parties, they were regarded as voidable only, and not void. That enactment, however, while according that marriages already celebrated " between persons within the prohibited degrees of affinity: shall not be annulled for that cause only by the ecclesiastical courts, goes on to declare that all marriages which the prohibited degree of consanguinity and affinity shall be absolutely null and void to all intents and purposes whatever." As to the second requisite, fraud, force, or duress, showing the absence of consent, will make void the marriage. Insanity at the time of the marriage has the same effect. A marriage may also be annulled for bodily incapacity existing at the time of the marriage, and proved to be incurable.

In a petition for restitution of conjugal rights, the marriage must be proved, and it must be shown that the respondent has withdrawn without reasonable cause from cohabitation with the other spouse. The court and only order husband and wife to live under the same roof. The petitioner will be refused a decree for restitution if he has himself committed any matrimonial offence which would be a ground for judicial ceparation.

Jactitation of marriage is when "one party boasts or gives out that he is married to the other, whereby, a common reputation of their marriage may ensue." Suits for jactitation are not now common. The only remedy of the court is to decree perpetual silence against the jactitator.

Scotch Law.—Divorce for adultery has been recognized in Scotland since the Reformation. It appears not to have been introduced by any statute, but to have been assumed by the post-Reformation judges as the common law. In another point the law of Scotland is in advance of the law of England. Divorce for adultery is competent to either spouse. Malicious desertion is also a ground for divorce. This was enacted by a statute of 1573, c. 55. A previous action of adherence was formerly necessary, but is now abolished by the Conjugal Rights Act 1861 infra. Recrimination is no bar to an action for divorce in Scotland, but any ground which would satisfy and decree of judicial separation would have been a defence to the old action for adherence. Judicial separation is granted for cruelty and adultery ; the party injured by the adultery of the other spouse may choose either judicial separation or divorce. The cruelty required to justify judicial must, as in England, be of a somewhat aggravated character. Divorce in Scotland had the effect of remitting the parties to the status of unmarried persons. The law, however made one exception. A divorced person was not allowed to marry the paramour, at all events if the paramour was named in the decree, and for this reason the name of the paramour is sometimes omitted, so that the parties may be allowed to marry if they wish.

By the Conjugal Rights (Scotland) Amendment Act 1861, provisions similar to those the English Divorce Acts, were established. A deserted wife may apply to the Court of Session for an order to protect any property which she has or may acquire by her own industry, or may succeed to ; and such order of protection, when made and intimated, shall have the effect of a decree of separation a mensa et thoro, all property she may acquire shall be considered as property belonging to her, in reference to which the husband’s just mariti and right of administration are excluded ; she may dispose of it in all respects as if she were unmarried, and if she dies intestate it will pass to her heirs and representatives, as if her husband had been dead. A wife so separated shall be capable of entering into obligations, and of suing and being sued, as if she were not married, and the husband shall not be liable for her obligations, &c., except when separation aliment has been ordered to be paid to the wife, and remains unpaid, in which case he shall be liable for her necessaries. In a husband’s action for adultery, the alleged adulterer may be cited as co-defender, and the expenses of process taxed as between agent and client may be charged upon him if the adultery is proved. The co-defender may be examined as a witness, and he may be dismissed from the cause, if the court is satisfied that such a course is conducive to the justice of the case. The Lord Advocate may enter appearance in any action of nullity of marriage or divorce. In any consistorial action, the summons shall be served personally on the defender when he is not resident in Scotland, but if the court is satisfied that he cannot be found, edictal citation will be sufficient, provided the pursuer shall also serve the summons on the children and the next of kin of the defender other than the children, when they are known and resident within the United Kingdom, and they, whether they are cited or so resident or not, may appear and state defences to the action. By sect. xi. It shall not be necessary prior to any action of divorce to institute against the defender any action of adherence, nor to charge the defender to adhere to the pursuer, nor to denounced the defender, nor to apply to the presbytery of the bounds or any other judicature to admonish the defender to adhere. Proofs in consistorial actions are in future to be taken before the Lord Ordinary. Consistorial actions are defined in the Act as including actions of declaration of marriages, of nullity of marriage, and of legitimacy and bastardy, actions of separation a mensa et thoro, of divorce and of adherence and wife instituted in the court of session.

United States.—The matrimonial law of England, as at the time of the declaration of independence, forms part of the common law of the United States. But as no ecclesiastical courts have ever existed there, the law must be considered to have been inoperative. There is no national jurisdiction in divorce, and though it is competent to Congress to authorize divorces in the Territories, still it appears that this subject like others is usually left to the territorial legislature. In the different States, as in England, divorces were at first granted by the legislatures, whether directly or by granting special authority to the tribunals to deal with particular cases. This practice has, it appears, fallen into general disrepute, and by the constitution of some States legislative divorces are expressly prohibited. Apart from such express prohibitions, it has been contended that legislative divorces are debarred by general clauses in the constitution of the United States, or in the constitution of particular States. Thus the constitution of the United States says that no State shall pass a law impairing the obligation of contracts, and it has been argued that this clause prohibits legislative divorces. Bishop states that it "is settled law that legislative divorces are not invalid as impairing the obligation of contracts." Again, some States their legislatures to pass any retrospective law ; and legislative divorce, it has been said, is of the nature, of a retrospective statute, and authority on that point seems to be divided. Again, in some States it is contended that a legislative divorce is an infringement of the judicial power, and therefore unconstitutional. The judicial practice throughout the States is to confer jurisdiction in divorce on the courts of equity, to be administered in general accordance with the ordinary rules of equity practice. Each State of course determines for itself the causes for which divorce may be granted, and no general statement of the law can be made. In most States it appears to be allowed, not only for adultery, but for cruelty, willful desertion, and habitual drunkenness. In New York divorce is allowed only for adultery ; in South Carolina not for any cause ; in some other States for causes to be determined by the court in the exercise of its discretion. South Carolina, says Bishop (Marriage and Divorce, 1873), is the only State in which no divorce, legislative or judicial, has ever for any cause been granted ; and he quotes judicial testimony to show that the effect of this state of things is to bring about a partial recognition of concubinage. The proportion of his goods which a married man may leave to his concubine has in fact fixed by statute. Among the less usual grounds for divorce which have been recognized in particular States, habitual drunkenness has been mentioned above, which has been defined to be a fixed habit of drinking to excess, to such a degree as to disqualify a person from attending to his business during the principal portion of the time usually devoted to business. In Kentucky the offence must be accompanied with a wasting of his estate, and without any suitable provision for the wife and children. Gross neglect of duty, more particularly neglect or refusal to maintain his wife on the part of a husband having ability to do so, are in some States grounds of divorces. In New Hampshire, if either spouse joins a society believing the relation of husband and wife to be unlawful, and accordingly refuses cohabitation for three years, that is a sufficient ground of divorce, and "the Shakers" have been held to be such a society. In the same tate. "to be absent and not heard of" for three years is ground for divorce. Conviction for crime is a tolerably common ground. "Gross misbehaviour and wickedness," and "offering indignities to the wife so as to render her condition intolerable and her life burdensome," are also specified causes of divorce in some State. In Missouri and North Carolina it has been held under such a clause that a false accusation of adultery brought by the husband against the wife was a valid ground for divorce ; and in Missouri, where the court subsequently held that the statute contemplated indignities to the person only, and not to the mind (as in the case of a false charge), the State legislature amended the statute by specifying as cause for divorce "the offering such indignities to the other as to make his or her condition intolerable." The effect of this diversity of jurisdictions in producing a conflict of laws is noted below.

France.—Freedom of divorce was one of the short-lived results of the French Revolution. The code evil (1803) allowed divorce and judicial separation, although the advocates of free divorce appear to have desired the exclusion of the latter remedy. The husband might demand divorce of adultery; the wife for adultery when the husband has kept paramour in the conjugal residence. Either party might demand divorce for outrage, cruelty, or grave injuries (excès, ou injures graves), or on account of condemnation to an infamous punishment. Divorce by mutual consent was also allowed, under close restrictions as to the age of the of the parties, the duration of the marriage, the consent of relations, the protection of the children, &c. No new marriage could be made by either party within three years of this divorce. Separation was also allowed as an alternative remedy, but not by consent. When sentence has been pronounced against the wife for adultery, she shall be condemned, on the requisition of a public officer, to confinement in a house of correction for a period of not less than three months, and not more than two years. In 1816, the divorce clauses of the code civil were abolished, but judicial separation was retained. Subsequent attempts to restore freedom of divorce have been unsuccessful.

The law of divorce being thus different in different countries, while people are constantly moving from one country to another, there arises the juridical difficulty of the conflict of laws. A man born in one country, married in a second, and domiciled in a third, may there sue for a divorce on account of a matrimonial offence committed in a fourth. How is such a case to be decided, and what will be the effect of the decision in other countries than that in which it was pronounced? It is in the jurisprudence of England and Scotland, as Story points out, the such questions have been most satisfactory discussed. On the Continent the prevalence of the canon law, and the indifference of domestic tribunals to the opinion of foreign countries, have made these questions of less importance than they been with us. England and Scotland stand to each other legally in the relation of foreign countries, while socially and politically they are one countries, while socially and politically they are one country. On the fundamental question whether marriage can be dissolved or not they took, until the passing of the English Divorce Act, different sides. When an English marriage was brought before the Scotch courts on a matrimonial complaint, they dissolved the marriage, while the English courts after such a dissolution held hat the marriage still subsisted in full force and effect. The House of Lords, which was at once the highest court of appeal in Scotch and in English law, may almost be said to have decided the same question in two different ways,—holding that by the Scotch law the dissolution was good for Scotland, and note denying that by the English law it was bad for England. The two cases on which this opposition of views was mot distinctly out were Lolley’s case (1 Russell and Ryan) and Warrender v. Warrender (2 Clark and Finnelly). In the former case a man was convicted for bigamy for marrying again after having had his English marriage dissolved by the Scotch courts for his wife’s adultery. The latter was an appeal to the House of Lords from the Court of Session asserting jurisdiction to decree divorce from an English marriage, and in the result it was held that the House of Lords in a Scotch case was bound to administers the law of Scotland, and that by the law of Scotland the jurisdiction was well founded. But the judgment in Lolley’s case was not overruled ; and although English marriages are no longer indissoluble, it may be presumed that the principle of that case would be applied when an English marriage had been dissolved in foreign country for an offence not recognized as a valid ground of divorce in England. The following more recent cases may be noted as illustrating the attitude of English law towards foreign divorces. When the marriage took place in England, but the parties never lived together, and the husband committed adultery, and afterwards by arrangement went to Scotland for the purpose of founding a jurisdiction against himself, and the Scotch court pronounced a decree of divorce,—it was held that a Scotch marriage duly celebrated between the divorce wife and an Englishman did not given to the children of the marriage the character of lawfully begotten so as to enable them to succeed to property in England. So when A, an Englishman, married B. in Scotland, and was again married to him in Belgium, and afterwards a Belgium court pronounced a decree of divorce by mutual consent, it was held that A’s subsequent marriage to C in England was null and void, and that the Scotch marriage was still valid and subsiding. Again, a petitioner whose original domicile was English, and who married in England, resided to years and a half in one of the Untied States, and then obtained a divorce from a competent court there for grounds recognized in England, without personal notice to the husband, who had never been within the State, and whose domicile continued to be English ; it was held that her re-marriage in America during the lifetime of her husband was invalid in England. Had the petitioner been legally domiciled in the in the State which granted the divorce it appears that the English courts could have recognized the decree. In this class of questions may be placed those which have arisen as to the jurisdiction of the court. Here four points are mentioned in the English text-books as material, viz., allegiance, the place of marriage, the place of domicile, and the place of the delictum (see DOMICILE.) The court has asserted its jurisdiction in the following cases :— when the allegiance and the place of marriage were English, the locus delicti and domicile foreign ; when the allegiance and domicile were English were English, and the locus contractus et delicti foreign. It has been held that the court can inquire into the validity of a marriage in England between foreigners domiciled abroad at the time of the marriage. And when the marriage had been solemnized between foreigners in a foreign country, and the wife committed adultery abroad, the court held itself entitled to dissolve the marriage on the petition of the husband then domiciled in England. And in an Irish case it was held that the domicile of the husband will sustain the jurisdiction of the court over the wife though married abroad, always after marriage resident abroad, and accused of adultery committed abroad.

Questions of this sort have frequently arisen in American jurisprudence. The different States are to each other in the matter of divorce as foreign countries. The learned writer to whom we have already referred (Bishop, Marriage and Divorce) formulates the following propositions:—2 1. The tribunals of a country have no jurisdiction in divorce, wherever the offence may have occurred, if neither of the parties has an actual bona fide domicile within its territory ; 2. It is sufficient for one of the parties to be domiciled in the country ; both need not be, neither need the citation where the domiciled party in plaintiff be served personally on the defendant, if such personal service cannot be made ; 3. The place where the offence was committed is immaterial ; 4. The domicile of the parties at the time of the offence is immaterial ; 5.It is immaterial under what system of divorce laws the marriage was celebrated. The author hold that the foregoing doctrines are not in conflict with the United States constitution, but that they are made binding by that constitution on the tribunals of all the States. It has been pointed out, however, that the fourth proposition has been denied by the courts of Pennsylvania and New Hampshire, which hold that only the courts of that country where the parties were domiciled when the offence was committed have jurisdiction to dissolve marriage for such offence. Bishop finally holds that "if a court has jurisdiction in a divorce cause, valid according to the law of the State in which it is taken, and not obnoxious to principles of inter-State comity, and it pronounces a divorce, it is binding on al the other states of the Union. If there was the domicile necessary to give the jurisdiction, would be everywhere in our country of absolute force, both as to the status of marriage and as to alimony and other like property rights. If the plaintiff only had a domicile, and there was no notice to the defendant within the jurisdiction, then the decree could affect only the plaintiff’s status of marriage." (E. R.)


FOOTNOTE (p. 301)

1 The satirical address of Mr Justice Maule to a poor man convicted of bigamy, in 1845, put the absurdities of the existing law in a way not likely to be forgotten. The prisoner’s wife and robbed him and run away with another man. "You should have brought an action," he told him " and obtained damages, which the other side would probably not have been able to pay, and you would have and to pay your own costs, perhaps a hundred or a hundred and fifty pounds. You should then have gone to ecclesiastical courts, and obtained a divorce a mensa et thoro, and then to the House of Lords, where, having proved that these preliminaries had been complied with, you would have been enabled to marry again. The expense might amount to five or six hundred or perhaps a thousand pounds. You say you are a poor man. But I must tell you that there is not one law for the rich and another for the poor.’

The above article was written by: Edmund Robertson, K.C., M.A., LL.D., Barrister; late Fellow of Corpus Christi College, Oxford; Reader on Law to the Council of Legal Education; M.P. for Dundee from 1885; Civil Lord of the Admiralty, 1892-95; author of American Home Rule.

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