Divorce law

“ Remarriage, residence, notice, and miscellaneous provisions.—The character of a divorce law does not, of course, depend wholly upon the number of causes for separation allowed, but in large measure upon the conditions under which the decree is granted and the safeguards provided to prevent hasty or clandestine action. Whether or not either or both of the divorced persons shall be allowed to contract further marriage, and on what terms, has always been an important question. ”

“ The fact that, from the legal point of view, marriage is primarily an arrangement for securing the rights of property and inheritance is well illustrated by the English divorce law to-day. According to this law, if a woman has sexual intercourse with any man beside her husband, he is entitled to divorce her; if, however, the husband has intercourse with another woman beside his wife, she is not entitled to a divorce ”

“ 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. ”

“ Whether the number of divorces is directly influenced by legislation is a question which has given rise to decided difference of opinion. Bertillon, writing in 1883 in favor of the new divorce law of France then under consideration, took the position that statutes extending the number of causes of divorce or relaxing the procedure in divorce suits have little influence "upon the increase in the number of decrees." ”

“ The law for divorce was enforced by the Department of Health, as doctors were, from their knowledge of human frailty, the best judges to decide whether a man and woman should live together in the married state or be separated, and while the law provided for a compulsory decree of divorce for adultery, which was a felony, it also allowed divorce for incompatibility of temperament. A court of six Government physicians, three males and three females, heard all divorce cases in every district. ”

“ Unless otherwise provided by local law, a decree of divorce by a court having jurisdiction of the cause and of the parties, dissolving the bond of matrimony, puts an end to all obligations of either party to the other, and to any right which either has acquired by the marriage in the other's property, except so far as the court granting the divorce, in the exercise of an authority vested in it by the legislature, orders property to be transferred, or alimony to be paid by one party to the other. ”

“ By the act of 1848, putting an end to legislative interference, the "circuit and superior courts of law and chancery" are given authority to grant absolute divorce on the single ground of adultery, with liberty to both parties to remarry, or only to the innocent or injured party, as may seem just. [183] A statute of the next year allows limited divorce for cruelty, reasonable apprehension of bodily hurt, abandonment, or desertion; and these four causes are still in force. ”

“ No divorce has ever taken place within the state. The legislature has uniformly refused to grant divorces, on the ground that it was improper for the legislative body to exercise judicial powers. And it has as steadily refused to enact any law to authorize the courts of justice to grant divorces a vinculo matrimonii, on the broad principle that it was a wise policy to shut the door to domestic discord, and to gross immorality in the community. ”

“ Secondly, the term divortium a mensa et thoro means a judicial separation of husband and wife which does not touch the marriage tie. In each case, therefore, the use of the word "divorce" is loose and very misleading. [144]
As finally settled, the canon law permits a separation from bed and board on three grounds. First is adultery. For this offense the woman as well as the man is given an action for divorce, which, however, may be defeated by pleading various exceptions, such as the like guilt of the accusing party. ”

“ Under the existing law, as the result of a century's growth, not less than eleven grounds of complete divorce are recognized. By the statute of 1815, repealing the law of 1785, the four causes sanctioned by the latter are re-enacted, the term of "malicious desertion and absence from the habitation of the other"—as the clause is now phrased—being reduced to two years; and it is further provided that full dissolution of marriage may be decreed (5) when any husband, by cruel and barbarous treatment, shall have endangered the life of his wife ”

“ True philosophy would extract good from every condition.... By art. IV, sec. 15, of our constitution, the courts of common pleas have exclusive jurisdiction in all cases of divorce, and by art. XIV, sec. 5, divorces from the bonds of matrimony shall not be allowed but by the judgment of a court as shall be prescribed by law. Thus the general assembly is denied the power to grant divorces directly, but is permitted to clothe the courts of common pleas with that power. ”

“ In some of the cases excepted in the preceding section, the second marriage is merely excusable. Although the party to such marriage is exempt from the penalty, yet if the former wife or husband is living, though the fact is unknown, and no divorce has been duly announced, or the first marriage has not been duly annulled; the second marriage is void. Where there is no statute regulation, the common law governs, which is, that nothing but death, or a decree of a competent court, can dissolve the marriage tie. ”

“ Less strictly, divorce is commonly understood to include judicial declarations of nullity of marriage, which, while practically terminating the marriage relation, proceed in law on the basis of the marriage never having been legally established. ”

“ If either husband or wife have, after the betrothal but before the marriage, committed adultery with some one else, and this is made known after marriage, the innocent party may claim a divorce, if he or she demand it.
The law is in this respect severer with women than with men; for if a husband be informed of his wife having been seduced by some one else before her betrothal with him, he has the right to claim divorce from her, but the wife has not the same right vice versâ. ”

“ The law concerning divorce, however, would seem to lack that fairness which characterizes many other regulations of social life. A man might divorce his wife by the payment of a pecuniary consideration; but if a woman undertook the initiative in annulling the marriage contract, she might be condemned to death by drowning. ”

“ By the Virginia law of 1827, as already seen, absolute divorce, properly so called, can only be obtained from the legislature, although the superior courts of chancery are then authorized to annul voidable marriages. [180] The same tribunals, however, are granted full "cognizance of matrimonial [51] causes on account of adultery, cruelty, and just cause of bodily fear; and in such cases may grant divorce a mensa et thoro in the usual method of proceeding in those courts." They may thus "decree perpetual separation and protection to the persons and property of the parties;" ”

“ For the future the same privilege is extended to each of the parties to a partial divorce when they "have lived separate and apart from each other for the term of four years." [224] By a statute of 1858 this term is reduced to three years; and only those who have thus lived apart after partial separation are now allowed to petition for the entire dissolution of the marriage bond. [225] But in 1860, apparently to meet special cases, a law provides simply for a divorce a vinculo where the persons, prior to the act, have lived apart in the state four years without collusion. ”

“ At the present day it has become, with regard to divorce a vinculo matrimonii, a rule of greater and of more far-reaching importance.
The canon law as accepted in England, while allowing divorces of the nature and for the causes above mentioned, actively interfered to prevent separation between husband and wife in any other manner. A suit known as a suit for restitution of conjugal rights could be brought to compel cohabitation ”

“ In 1849, the year following the attainment of statehood, was adopted a new statute by which the foundation of the present system was laid. By it, as under the present law, a marriage is declared absolutely dissolved without any decree of divorce or legal process whenever either spouse is sentenced to imprisonment for life ”

“ But in order to make a divorce valid, even when granted by the courts of the state of the matrimonial domicil, there must be notice to the defendant, either by service of process, or (if the defendant be a nonresident) by such publication or other constructive notice as is required by the law of the state. ”

“ In more than half of the American states no distinction is made between kind of divorce, all divorces are absolute, from the bond of marriage.
The legal effect of divorces is still a grave matter. When a divorce has been legally granted by a state, the courts of every other state for obvious reasons recognize and try to uphold the decree or judgment, though not all of them, and consequently strange results follow. Thus a person who was married and living in New York leaves his wife for good reason and goes to Connecticut. ”

“ No person shall be entitled to a divorce for any cause arising out of this State unless the complainant or defendant shall have resided within this State for at least two years next before bringing suit for divorce, with a bona-fide intention of making this State his or her permanent home.
Sec. 3. No person shall be entitled to a divorce unless the defendant shall have been personally served with process if within the State, or if without the State, shall have had personal notice, duly proved and appearing of record, or shall have entered an appearance in the case ”

“ Quite frequently, the statute provides that there shall be no dower in case of divorce for the wife's fault. Occasionally it is provided by statute that divorce for the husband's fault shall not bar dower; and sometimes a statute requires dower to be assigned immediately upon divorce without awaiting the husband's death. ”

“ See Mr. Justice Holmes dissenting, Haddock v. Haddock, supra, 201 U.S. at page 631, 26 S.Ct. at page 552, 50 L.Ed. 867, 5 Ann.Cas. 1; Goodrich, Matrimonial Domicile, 27 Yale L.Journ. 49. It is one thing to say as a matter of state law that jurisdiction to grant a divorce from an absent spouse should depend on whether by consent or by conduct the latter has subjected his interest in the marriage status to the law of the separate domicil acquired by the other spouse. Beale, Conflict of Laws, § 113.11; Restatement, Conflict of Laws, § 113. ”

“ James’s Gazette, dealing with the subject of the Divorce Laws, calmly proposes that in any revision of the code, which he strongly advocates, “women should be placed on the same footing with men.” Such a pestilent heresy of course provoked correspondence, and, as I have made a careful study of the subject, I beg to submit to you, sir, a few reasonable grounds for divorce, which this reformer will, I hope, include in his precious revised code.
A man should be allowed to obtain a divorce from his wife on all or any of the following grounds:—
1. If he sees anyone he likes better than his wife. ”

“ The facts are to be tried by a "special or foreign" jury at some circuit court or sittings, to be held by a justice of the supreme court; and the person convicted is prohibited from further marriage only during the lifetime of the other spouse. But the most important innovation made by this act is the provision for partial divorce in favor of the wife. ”

“ The victim husband has the privilege of maintaining the children as well as herself out of his property or earnings, and has the added consolation of knowing that they will be brought up to detest him.
Even in the extreme case where a deserting wife takes with her the children of the marriage, there is practically no redress for the husband if in narrow circumstances. The police courts will not interfere. The divorce court, as already stated, is expensive to the point of prohibition. ”

“ A new cause of full divorce, analogous to that [54] allowed in some of the New England states, appears in 1812. When a man renounces the marriage agreement and refuses to live with his wife in conjugal relation "by uniting himself to any sect whose creed, rules, or doctrines require a renunciation of the marriage covenant, or forbid a man and wife to dwell and cohabit together," the aggrieved woman may have a full release; the offender is forbidden to remarry during the former's lifetime; or the wife may claim separate alimony and maintenance without divorce. ”

“ The guilty defendant is forbidden to "remarry any person whatsoever;" while the innocent plaintiff is fully authorized to "make and complete another marriage, in like manner as if the party convicted was actually dead." The divorce is not to affect the legitimacy of the children, and the chancellor is required to make proper orders for their care and maintenance and for the wife's alimony. ”

“ According to the report of the State librarian there were in the State last year 4,734 marriages and 478 divorces. Discontented people come here from other States, to take advantage of what is called our liberal legislation, to obtain divorces which would be denied them at home. As the sacredness of the marriage relation lies at the foundation of civilized society, it should be carefully guarded. Under our present laws the causes of divorce are too numerous, and not sufficiently defined, and too wide a discretion is given to the courts. ”