Page:Catholic Encyclopedia, volume 5.djvu/91

 DIVORCE

67

DIVOKCE

vorces. In New Jersey there was no divorce jurisdic- tion granted the courts. It may be said, therefore, that outside of New England during the colonial period there was no such thing as a judicial divorce.

From 1787-1906.— The Constitution of the United States does not grant the Federal Government any power over the subject of divorce. In this matter, therefore, Congress can legislate only for the District of Columbia and for the territories. The organic acts creating the territories give power to their legislatures over all "rightful subjects of legislation not inconsist- ent with the constitution of the laws of the United States"; special and general divorce laws are, there- fore, within the power of territorial legislatures, but by the Act of 30 July, 1886, all special divorce acts have bt3n expressly forbidden. The various states of the Union succeeded to the full sovereign rights exercised by the Parliament of England over all subjects relat- ing to marriage and divorce, but in the absence of special divorce statutes, there being no tribunal hav- ing jurisdiction, the law would remain the same as in the colonies prior to the Revolution. However, all states of the Union have adopted divorce statutes, ex- cepting South Carolina, and have clothed the courts with full jurisdiction to administer relief. In most of the states and territories divorces a vinculo and a mensd et ioro are provided for, and in some of the states courts of equity take jurisdiction over special proceedings for a decree of nullity of marriage. In some states, however, decrees a mensd are expressly forbidden. The causes for which a decree may be granted vary from the single cause of adultery on the part of either husband or wife (law of New York and the District of Columbia) to nine separate causes in the .State of Washington, the last being known as the " omnibus provision ", which permits a divorce for any other cause deemed by the court sufficient, provided that the court shall be satisfied that the parties can no longer live together. In most of the states there is no restriction upon the parties remarrying after divorce, though in some, as in New York, the court may forbid the guilty party to remarry during the lifetime of the innocent, and in others, as in Pennsylvania, marriage of the guilty party with a paramour during the life- time of the innocent party is null and void.

Great uncertainty as to the effect of the divorce stat- utes of the different states has arisen where relief has been sought by a party who.se husband or wife was residentof a different state from that in which the pro- ceeding was brought. While it is a fundamental principle that the courts of any state have entire con- trol over the citizens of that state in divorce proceed- ings, a different question arises where the husband is a resident of one state and the wife of another. The English doctrine that the domicile of the husband is that of the wife, irrespective of where she may actu- ally be living during coverture, does not prevail in the United States. For the purpo.ses of a divorce pro- ceeding the wife may have a domicile separate from that of her husband. In consequence of this rule of American law it has frequently happened that actions for divorce have been initiated and carried to a con- clusion without the respondent receiving any actual notice of the proceeding. This is made possible by provisions in the state statutes providing for service of notice by publication, where actual service cannot be had upon a respondent by reason of absence from the state. While decrees granted in accordance with the statutes of any particular state are valid in that state, there is no power to enforce a recognition of their validity in other states, and in consequence it fre- quently happens that a divorce may be valid in one state and invalid in another; the children of a second marriage legitimate in one state and illegitimate in another; the property rights of the former husband and wife terminated in one state and in full force in another. The Constitution of the United States (Art.

IV, Sec. I) provides that "full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state, and the Con- gress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof." This provision, however, does not require the recognition of a divorce where one of the parties is not a citizen of the state that has granted the decree. Thus in a case where a husband abandoned his wife without justifiable cause, and removed to another state and acquired a domicile therein, and the wife remained in the matrimonial domicile, since her domicile did not follow that of her husband when he sued for a divorce in the state of his new domicile, and a decree was rendered upon a merely constructive service of process, it was held by the Supreme Court of the United States that the court of the husband's domicile did not acquire such juris- diction over the wife as would entitle a decree to ob- ligatory enforcement in the state of her domicile, though the state in which the decree was rendered had power to enforce it within its borders, and the state of the wife's domicile had the power to give the decree efficacy if it saw fit to do so. (Haddock vs. Haddock, 201, U. S., 562.) While the courts of the states called upon to administer divorce statutes receive their juris- diction by rea.son of the theory adopted by the legisla- tures representing the actually predominant sentiment of the various communities that marriage results from a civil contract, bringing about a civil status with certain rights and duties appertaining to hus- band and wife, they by no means accept the theory that it is such a relation or status that the parties by their own agreement can dissolve it. The difference between the marriage relation and that of a contract is set out by Bishop in the following language: — "Be- cause the parties cannot mutually dissolve it; be- cause an act of God incapacitating one to discharge its duties will not release it ; because there is no accepted performance that will end it ; because a minor of mar- riageable age can no more recede from it than an adult ; because it is not dissolved by failure of the orig- inal consideration ; because no suit for damages will lie for the non-fulfillment of its duties; because legisla- tion may annul it at pleasure ; and because none of its other elements are those of contract but are all of status." (I, Marriage and Divorce, § 46.)

Keeping this distinction in mind, it will be perceived that a suit for divorce is not an action on a contract, but is a proceeding sui generis foimded on the violation of duty enjoined by law and resembling more an action of tort than of contract. The law looks upon marriage as a permanent status, to be ended only by the death of one of the parties, a promise of competent persons to marry at their pleasure requiring a marriage licence merely to attest their competency. To change this status by divorce it is necessary to satisfy the court that the purpose of the marriage relation has been ended by the fault of the guilty party, and that greater evil will follow from maintaining the marriage status than from terminating it. Therefore, in theory, the divorce statutes embrace only such causes as are re- cognized as being of such a nature as to defeat the ends for which the marriage was entered into. In the great majority of the United States si.x causes are included in this category: (1) adultery, (2) bigamy, (.3) convic- tion of crime in certain classes of cases, (4) intolerable cruelty, (5) wilful desertion for two years, (6) habitual drunkenness. These are recognized as just causes, either for absolute divorce or for divorce a mensd. The following causes are also considered such impedi- ments to a lawful marriage that upon thoir being made to appear, the courts will decree such marriages null and void, in some jurisdictions under a separate pro- ceeding for nullity, and in others under the form of a proceeding for divorce. These causes are (1) im- potence, (2) consanguinity and affinity properly lim-