Francis Henry Jeune and Walter Francis Willcox

“ It is remarkable that desertion by either party to a marriage, except as giving rise to a suit for restitution, was not treated as an offence by canon law in England. It formed no ground for a suit for divorce, and constituted no answer to such a suit by way of recrimination. It might indeed deprive a husband of his remedy if it amounted to connivance, or perhaps even if it amounted only to culpable neglect. ”

“ According to American practice, divorce is the termination by proper legal authority, sometimes legislatively but usually judicially, of a marriage which up to the time of the decree was legal and binding. It is to be distinguished from a decree of nullity of marriage, which is simply a legal determination that no legal marriage has ever existed between the two parties. It is also to be distinguished from a decree of separation, which permits or commands the parties to live apart, but does not completely and for all purposes sever the marriage tie. ”

“ You have been convicted of the offence of bigamy, that is to say, of marrying a woman while you had a wife still alive, though it is true she has deserted you and is living in adultery with another man. ”

“ A divorced husband may remarry his divorced wife, but if he does so, he cannot be again divorced, except on the ground of a sentence to a peine afflictive et infamante passed on one of them since their remarriage. There is, however, this limitation on the power of remarriage of divorced persons, that the party to the marriage against whom the decree has been pronounced is not allowed to marry the person with whom his or her guilt has been established. Such person, however, has no such rights as are recognized in him or her according to English law, and cannot take any part in the proceedings. ”

“ It is by no means impossible, for example, that the spread of divorce among the negro population in the South marks a step in advance from the condition of largely unregulated and illegal unions characteristic of the race immediately after the war. The prevalence of divorce in the United States among the native population, in urban communities, among the New England element, in the middle classes of society, and among those of the Protestant faith, indicates how closely this social phenomenon is interlaced with much that is characteristic and valuable in American civilization. ”

“ In case of divorce by consent, the law required that a proper agreement should be made for the maintenance of the wife and the custody of the children. A husband could obtain a divorce a vinculo matrimonii for adultery, but the wife had no such power unless the husband had brought his mistress to the home. Both husband and wife could claim divorce on the ground of outrage, or grievous bodily injury, or condemnation for an infamous crime. If the divorce was for adultery, the erring party could not marry the partner of his or her guilt. ”

“ The conditions under which, in different communities, divorce has at different times been permitted, vary with the aspects in which the relation of marriage (q.v.) has been regarded. When marriage has been deemed to be the acquisition by the husband of property in the wife, or when it has been regarded as a mere agreement between persons capable both to form and to dissolve that contract, we find that marriage has been dissoluble at the will of the husband, or by agreement of the husband and wife. ”

“ Although, therefore, with the above exception, no strict rules of the evidence necessary to establish adultery have ever been established in the English courts, experience has indicated, and in former days judges of the ecclesiastical courts often expressed, the lines upon which such proof may be expected to proceed. It is necessary and sufficient, in general, to prove two things—first the guilty affection towards each other of the persons accused, and, secondly, an opportunity or opportunities of which, if so minded, their passion may have been gratified. ”

“ In addition to its recognition of full divorce, the French law recognizes separation of two kinds, one séparation de biens and the other séparation de corps. The effect of séparation de biens is merely to put an end to the community of goods between the spouses. ”

“ Certainly the divorce-rate is increasing in nearly every civilized country. Decrees of nullity of marriage and decrees of separation not absolutely terminating the marriage relation are relatively far less prevalent than they were in the medieval and early modern period, and many persons who under former conditions would have obtained relief from unsatisfactory unions through one or the other of these avenues now resort to divorce. The increasing proportion of the community who have an income sufficient to pay the requisite legal fees is also a factor of great importance. ”

“ Separation Deeds.—Although nothing in the development of the law of divorce has tended to give to married persons the right absolutely to dissolve their marriage by consent, and, on the contrary, any such agreement would be held to be strong evidence of collusion, the view of the Church expressed in the ecclesiastical law has been entirely departed from as regards agreements for separation. Such agreements were embodied in deeds, and usually contained mutual covenants not to sue in the ecclesiastical courts for restitution of conjugal rights. ”

“ A husband could divorce his wife without incurring a penalty for any of these reasons except the last, and also for the following reasons: (1) going to dine with men other than her relations without the knowledge or against the wish of her husband; (2) going from home at night against his wish without reasonable cause; (3) frequenting the circus, theatre or amphitheatre after being forbidden by her husband. If a husband divorced his wife for any other reason, he forfeited all interest in his wife’s dowry, and also any property he brought into the marriage. ”

“ The matter was long debated, but Lord Thurlow, who appeared in the House of Lords for the last time in order to support the bill, turned the scale by arguing that it was improper that the wife should under such circumstances return to her husband (see Campbell, Lives of the Chancellors, vii. 145) . “Why do you,” he said, “grant to the husband a divorce for the adultery of the wife? Because he ought not to forgive her, and separation is inevitable. Where the wife cannot forgive, and separation is inevitable by reason of the crime of the husband, the wife is entitled to the like remedy.” ”

“ Condonation is, however, always presumed to be conditional on future good behaviour, and misconduct even of a different kind revives the former offence. (3) Connivance constitutes a complete answer to any charge. Nor need the husband be the active agent of the misconduct of the wife. Indifference or neglect imputable to a corrupt intention are sufficient. It will be seen presently that modern statute law has gone further in this direction. It is to be added that the connivance need not be of the very act complained of, but may be of an act of a similar kind. ”

“ It should be added, as a matter closely akin to the proceedings in the ecclesiastical courts, that the common law took cognizance of one phase of matrimonial relations by allowing an action by the husband against a paramour, known as an action for criminal conversation. In such an action a husband could recover damages estimated according to the loss he was supposed to have sustained by the seduction and loss of his wife, the punishment of the seducer not being altogether excluded from consideration. ”

“ The meaning of these words of Christ Himself has been involved in controversy, which perhaps was nowhere carried on with greater acuteness or under more critical conditions than within the walls of the British parliament during the passage of the Divorce Act of 1857. That they justify divorce of a complete kind for moral delinquency of some nature is supported by the opinion probably of every competent scholar. But scholars of eminence have sought to restrict the meaning of the λόγος πορνείας to antenuptial incontinence concealed from the husband, and to exclude adultery. ”

“ The importance of the former consideration is reflected in the fact that the divorce-rate for the United States as a whole shows clearly, in its fluctuations, the influences of good and bad times. When times are good and the income of the working and industrial classes likely to be assured, the divorce-rate rises. In periods of industrial depression it falls, fluctuating thus in the same way and probably for the same reason that the marriage-rate in industrial communities fluctuates. ”

“ A letter from one spouse to the other may constitute an injure and the courts have further held themselves at liberty to consider letters written after divorce proceedings have been commenced. Injures graves have also been considered to include material injuries, and among these have been classed habitual and groundless refusal of matrimonial rights, communication of disease and refusal to consent to a religious ceremony of marriage. Habitual but not occasional drunkenness has also been held to fall within the definition of an injure grave. ”

“ The absolute grounds are adultery, bigamy, sodomy, an attempt against the petitioner’s life or wilful desertion. The relative grounds are (a) such grave breach of marital duty or dishonourable or immoral conduct as would disturb the marital relation to such an extent that the marriage could not reasonably be expected to continue; (b) insanity, continued for more than three years during the marriage, and of so severe a nature that intellectual community between the parties has ceased and is not likely to be re-established. ”

“ Divorce by consent disappeared, and the following became the causes for which divorce was allowed: (1) Adultery by either party to the marriage at the suit of the other, without, in the case of adultery by the husband, the aggravation of introduction of the concubine into the home required by the Code; (2) violence (excès) or cruelty (sévices) ; (3) injures graves; and (4) peine afflictive et infamante. ”

“ It was always accepted in England, although not in other countries, such as France and Scotland, which also followed the canon or civil law. In strictness, recrimination applied to a similar offence having been committed by the party charging that offence. But a decision (1888) of the English courts shows that a wife who had committed adultery could not bring a suit against her husband for cruelty (Otway v. Otway 13 P. D. 141) . (2) Condonation. If the complaining spouse has, in fact, forgiven the offence complained of, that constitutes a conditional bar to any proceedings. ”

“ If the president fails to effect a reconciliation, he makes an order permitting the petitioner to proceed, and deals with the matters necessary to be dealt with pendente lite, such matters being (1) separate residence, (2) alimony, (3) possession of personal effects, (4) custody of children. As regards residence, the wife is compelled to adhere during the proceedings to the residence assigned to her, but no similar restriction is placed on the husband. Alimony pendente lite is in the discretion of the court, having regard to the means of the parties, and includes a proper provision for costs. ”

“ The total number of petitions in matrimonial causes presented by husbands exceed those presented by wives, but in no marked degree. This excess would seem to be due to the fact that the larger number of petitions for dissolution presented by husbands, owing no doubt to the difference in the law affecting the two sexes, is not entirely counterbalanced by the much larger number of petitions for judicial separation presented by wives. ”

“ In the case of aliens, therefore, married under the rule of separate property, it is necessary carefully to set this out in the notarial deed of liquidation, in order to defeat the presumption which might be raised by the wording of the decree that a community really did exist. The party against whom the divorce has been pronounced loses the benefit of all settlements made upon him or her by the other party, either by the marriage contract or since the marriage. ”