The American Cyclopædia (1879)/Divorce

DIVORCE, a dissolution of the bond of matrimony for cause occurring after marriage. In popular language, however, and often in judicial discussions and statutes, another class of cases is included, namely, those in which a marriage is annulled for antecedent causes rendering it void or voidable. The common law allowed divorces causa impotentiæ seu frigiditatis, if such impotence or frigidity existed before marriage, this being deemed a fraud; but it was no ground of divorce if it supervened after marriage; and it is the only kind of fraud of which we find mention in the English cases as a ground of annulling a marriage. Fraudulent representations by either party in respect to his or her condition in life, pecuniary circumstances, family connections, bodily health, and the like, however material these may have been in inducing a consent to the contract, still are unavailable as an impeachment of the marriage. A false personation of another, or any fraud by which one of the parties is deceived in respect to the person with whom the marriage is solemnized, is a sufficient cause for annulling the marriage; but this is put upon the ground of want of consent, it being equally essential to this as to other contracts that there should be the animus contrahendi, and the contract cannot take effect contrary to the real intention of the party who is to be bound. In the English courts the proceeding causa jactitationis matrimonii was intended for relief in such cases; in form, being an action by the

one party for an alleged assertion by the other that a marriage has taken place, whereupon the matter is tried, and unless the defendant proves that there was a marriage he is prohibited from averring the same, which is equivalent to a decree that there was no such marriage. A marriage accomplished by force may be annulled at the option of the party wronged, and so might a marriage one party to which was under the age of consent, or where the parties are within the prohibited degrees of consanguinity or affinity, or where one already has a wife or husband living from whom he or she is not divorced. In these cases judicial proceedings are not necessary, but they are permitted on grounds of prudence and propriety, and in order that any question which might be the subject of dispute may be conclusively determined. The nature of the fraud that shall invalidate a marriage it is not easy to define; but it may safely be assumed that it must be something entering into the very essentials of the relation, such as deception in respect to the person with whom the ceremony is performed. It has been held in some cases that if the woman, without the man's knowledge, is pregnant at the time of the ceremony, this is such a fraud as justifies a decree of nullity; but ante-nuptial unchastity is not sufficient, nor fraudulent representations in respect to other matters which may have constituted the inducement to the consent. Voluntary cohabitation as husband and wife is a bar to dissolution of the marriage, either for force or fraud, and it validates a marriage entered into before the age of consent, if continued after both parties have reached that age. In the English ecclesiastical courts there was formerly another ground upon which marriage could be annulled, viz., a prior engagement with another party. But this was abrogated by statute 26 George II., c. 33, which prohibited all suits to enforce performance of a marriage contract, the parties being thus left to an action for damages upon refusal to perform it.—We have next to consider divorce for causes occurring after marriage. Under the Hebrew law, it seems that the husband might put away his wife at will, giving her a bill of divorcement, and the divorced wife was then at liberty to marry again. An exception to the liberty of divorce was made of husbands who had deflowered their wives while unbetrothed virgins, and husbands who slandered the ante-nuptial chastity of their wives. Among the Greeks at an early day wives appear to have been bought and sold, and in later times divorce was substantially at the pleasure of either party, though a judicial form was gone through with. In Rome, for a long time, divorces appear to have been opposed to public sentiment, and to have required the sanction of a council or court of the relatives of the parties. Later, when dissoluteness of life had become general, divorce was common, and was permitted to both parties, and resorted to for

any cause or upon any caprice. Julius Cæsar and Pompey each divorced two wives, and Cicero put away his first wife that he might marry another who was rich, a union which was more speedily dissolved. These were representative cases, and by no means exceptional. Things were no better under the emperors, though efforts were made to impose some restraints, which, however, referred mainly to forms. Long after the empire became nominally Christian, divorce was unrestricted if by mutual consent, and might be obtained without mutual consent, though if the cause assigned was deemed insufficient to justify it, the party obtaining it was visited with a pecuniary penalty in the adjustment of their property rights. By the law of Theodosius II., adopted substantially by Justinian, the justifiable causes of divorce to the wife were certain high crimes, including murder, treason, poisoning, assaults or attempts upon the life of the wife, intimacy with prostitutes, and adultery. The justifiable causes on the part of the husband were substantially the same, with the addition of passing the night out of his house, and visiting places of amusement without his consent.—The theory of the sacramental nature of marriage gradually took possession of the Christian world; and when the reformation of the 16th century began, it was the accepted doctrine of the church that no offence of either party justified a dissolution of the marriage covenant, leaving the parties, or either of them, at liberty to marry again. This doctrine was supposed to be derived from the New Testament, and was confirmed by the council of Trent; but the reformers, who also planted themselves in this regard upon the gospel, though differing among themselves, generally agreed in permitting divorce for adultery and malicious desertion. Both Luther and Calvin thought that, though adultery ought to be punished with death, yet as the civil laws did not so provide, it was not wise to prohibit the divorced adulterer from marrying again. It may be said generally that from the beginning of the reformation to the present time the liberty of divorce in Protestant countries has been steadily enlarged. In Prussia it is permitted for adultery, sodomy and other unnatural vices, malicious desertion, persistent refusal of marital intercourse, plots or practices endangering life or health, ungovernable temper, drunkenness, extravagance, &amp;c., unless corrected after admonition of the judge; failure of the husband to support the wife, hopeless insanity continuing for more than a year, and, where there are no children, deliberate mutual consent. This is the extreme of liberality, and goes somewhat further than is permitted in any of the other German, states. Holland and Scotland allow divorce for adultery and desertion. The civil code of France allowed divorce—1, for adultery of the wife, but not for adultery of the husband except when he brought a paramour or concubine into his own house; 2, to either party for

any outrage, cruelty, or grievous wrong inflicted upon him or her by the other party; 3, to either upon the condemnation of the other to an infamous punishment, which is elsewhere defined to be either imprisonment, banishment, loss of civil rights, or being placed in the public stocks; 4, by mutual consent, with other satisfactory proof that the continuance of the marriage would be insupportable. These provisions were rescinded in the religious reaction of 1816. A law was passed (May, 1816) effacing divorce from the civil code, and reëstablishing the old law, which allowed only separation. Ineffectual attempts were made in 1831 and 1832 to repeal this law, and there is therefore at present no divorce a vinculo matrimonii in France.—In England, from a very early period, divorce a vinculo matrimonii was not allowed for causes subsequent, but only a separation a mensa et thoro, which did not authorize either party to marry again. This practice was derived from the canon law, which held marriage to be a sacrament, and that it could not be dissolved for any cause whatever. But by statute 20 and 21 Victoria, c. 85 (1857), divorce a vinculo is now allowed on the petition of the husband for the adultery of the wife, and on the petition of the wife when the husband has been guilty of incestuous adultery, rape, bestiality, or adultery accompanied by cruelty. Divorce a mensa et thoro is by the same act denominated a decree of judicial separation, and under that designation is allowed for the same causes as heretofore. A new tribunal, called the court for divorce and matrimonal causes, has been established, and the jurisdiction of the ecclesiastical courts has been entirely superseded in such matters, except the granting of marriage licenses. Before this statute, however, private acts of divorce were sometimes obtained from parliament for the wife's adultery.—In America, it was assumed in the colonial period that the granting of divorce was or might be legislative in its nature, and after the revolution the state legislatures assumed the right to pass special acts for the purpose. This, however, led to very serious abuses, and is now generally prohibited by the state constitutions, and jurisdiction for the purpose conferred upon the courts, with the causes specifically enumerated. The subject is so important that we have deemed it proper to give the causes recognized by the statutes of the several states as sufficient to warrant a divorce a vinculo, omitting in the specification, for the sake of brevity, those which under any system would render the marriage void or voidable, viz.: a previous marriage still in force, and a marriage under the age of consent, or within the prohibited degrees of relationship. Alabama: physical incapacity, adultery, desertion for two years, two years' imprisonment on a sentence of seven years or more, sodomy, pregnancy at marriage without the husband's knowledge, violence of the husband to the wife endangering her life, or reasonable fear

Arkansas: impotence, desertion for a year, conviction of felony or other infamous crime, habitual drunkenness for a year, such cruel and barbarous treatment as endangers life, or such indignities to the person as render the condition intolerable, adultery. California: adultery, extreme cruelty, consent obtained by force or fraud, wilful desertion, wilful neglect of the husband to provide for the wife for two years, habitual intemperance, conviction of felony, marriage of the female under 14 without consent of parents or guardian. Connecticut: adultery, fraudulent contract, impotence, wilful desertion for three years with total neglect of duty, seven years' absence not heard from, habitual intemperance, intolerable cruelty, sentence to imprisonment for life, bestiality, or any other infamous crime involving a violation of conjugal duty, and punishable by imprisonment in state prison, or any such misconduct as permanently destroys happiness and defeats the purposes of marriage. Delaware: adultery of the wife or impotence of either party, adultery of the husband being only cause for divorce from bed and board, with cruelty and desertion. Florida: impotence, adultery, extreme cruelty, habitual indulgence in violent and ungovernable temper, habitual intemperance, desertion for a year. Georgia: mental incapacity, impotence, force, duress, or fraud in obtaining the marriage, pregnancy at the time of marriage without the husband's knowledge, adultery, desertion for three years, sentence to the penitentiary for two years or more for an offence involving moral turpitude, habitual intoxication, cruelty. Illinois: impotence, adultery, desertion for two years, extreme and repeated cruelty, habitual drunkenness for two years, conviction of felony, or other infamous crime; and in addition to these causes the court may decree a divorce on other grounds if satisfied of the expediency of so doing. Indiana: adultery, impotence, abandonment for a year, cruel and inhuman treatment, habitual drunkenness, failure of the husband to provide, conviction of an infamous crime after marriage, and for such other causes as the court in its discretion may deem sufficient. Iowa: impotence, adultery, wilful desertion for two years, conviction of felony, habitual drunkenness, treatment that endangers life. Kansas: desertion for a year, adultery, impotence, pregnancy at the time of marriage by another than the husband, extreme cruelty, fraudulent contract, habitual drunkenness, gross neglect of duty, conviction of felony. Kentucky: impotence, living apart without cohabitation for five years, abandonment and living in adultery for six months, desertion for a year, conviction of felony, force, duress, or fraud in obtaining marriage, contracting a loathsome disease, uniting with any religious society which requires renunciation of the marriage contract or forbids cohabitation, confirmed drunkenness of the husband with improvidence continued for a year, habitual

of the husband continued in a cruel and inhuman manner not less than six months, cruel beating or injury of the wife or attempts at the same, pregnancy at the time of marriage without the husband's knowledge, adultery of the wife or such lewd and lascivious behavior on her part as proves her to be unchaste, confirmed mental unsoundness of not less than three years' continuance resulting from intemperance or hereditary taint and concealed at the time of marriage. Louisiana: adultery, habitual intemperance, cruelty, sentence to an ignominious punishment, desertion for five years, fleeing from justice when charged with an infamous offence. Maine: insanity or idiocy, sentence to imprisonment for life; and a divorce may be decreed when the judge deems it reasonable and proper, conducive to domestic harmony, and consistent with the peace and morality of society. Maryland: impotence, adultery, three years' desertion, unchastity of the woman before marriage unknown to the husband. Massachusetts: adultery, impotence, insanity or idiocy at marriage, uniting with a religious sect that professes to believe the relation of husband and wife void or unlawful and refusing cohabitation for three years, sentence to confinement for five years or more, desertion for five consecutive years. Michigan: adultery, impotence, sentence to imprisonment for three years or more, desertion for two years, habitual drunkenness, extreme cruelty, gross, wanton, and cruel neglect or refusal by the husband to provide for the wife. Minnesota: adultery, impotence, cruel and inhuman treatment, sentence to imprisonment in the state prison, wilful desertion for three years, habitual drunkenness for a year, cruelty. Mississippi: impotence, adultery, sentence to the penitentiary, desertion for two years, habitual drunkenness, habitual cruel and inhuman treatment, pregnancy unknown to the husband at the time of marriage, insanity or idiocy of one party at the time of marriage unknown to the other. Missouri: impotence, desertion for a year, adultery, conviction of felony or infamous crime, habitual drunkenness for a year, cruelty or indignities that render life intolerable, the husband becoming a vagrant, pregnancy by another than the husband without his knowledge at the time of the marriage. Nebraska: adultery, impotence, sentence to imprisonment for three years or more, desertion for two years, habitual drunkenness, extreme cruelty, consent obtained by force or fraud. Nevada: impotence, adultery, desertion for two years, conviction of felony or infamous crime, habitual gross drunkenness incapacitating the party from contributing to support of family, extreme cruelty, neglect of husband for two years to provide necessaries. New Hampshire: impotence, adultery, extreme cruelty, actual imprisonment on conviction of crime for more than a year, treatment that seriously injures health or

reason, three years' absence not heard from, habitual drunkenness for three years, joining a religious society which professes to believe the relation of marriage unlawful and refusing cohabitation for six months, abandonment for three years with refusal of cohabitation, refusal of the husband to provide for the wife for three years. New Jersey: adultery, desertion for three years. New York: adultery of either party (the sole cause occurring after marriage), impotence, idiocy, or lunacy at the time of marriage, consent obtained by force or fraud. North Carolina: impotence, abandonment, and living in adultery, “or any other just cause for a divorce.” Ohio: three years' desertion, adultery, impotence, extreme cruelty, fraudulent contract, gross neglect of duty, habitual drunkenness for three years, imprisonment under criminal sentence. Oregon: impotence, adultery, fraudulent contract, sentence for felony, habitual drunkenness for two years, desertion for three years, cruel and inhuman treatment or indignities rendering life burdensome. Pennsylvania: impotence, adultery, desertion for two years, cruel treatment or indignities that render the condition intolerable and life burdensome, fraud, force, or coercion in procuring the marriage, sentence to two years' imprisonment for felony, becoming a lunatic or non compos mentis. Rhode Island: impotence, adultery, extreme cruelty, desertion for five years, or less in the discretion of the court, continued drunkenness, neglect or refusal of the husband to provide necessaries, gross misbehavior and wickedness in either party repugnant to or in violation of the marriage contract. South Carolina: adultery, desertion for two years; and the deserting party may have divorce if the desertion is justified by cruel treatment, or by neglect of the husband to provide maintenance. Tennessee: impotence, adultery, desertion for two years, conviction of an infamous crime or of felony, malicious attempt upon the life of the spouse, pregnancy by another person at the time of the marriage without the husband's knowledge, cruelty, indignities by the husband to the wife forcing her to withdraw from him, abandonment of the wife or turning her out of doors and refusal to provide for her. Texas: impotence, adultery of the wife, desertion, adultery of the husband and abandonment of the wife for three years, cruelty. Vermont: idiocy or lunacy at marriage, adultery, sentence to imprisonment for three years or more with actual confinement, intolerable severity, desertion for three years, absence for seven years without being heard from, neglect of the husband to provide maintenance. Virginia: adultery, impotence, sentence to the penitentiary, fleeing from justice for a felony and remaining absent for two years, desertion for five years, pregnancy at the time of the marriage by some person other than the husband without his knowledge, prostitution by the wife before marriage without the husband's knowledge,

of an infamous offence before marriage without the other's knowledge. West Virginia: adultery, impotence, sentence to confinement in the penitentiary, desertion for three years, pregnancy at the time of the marriage by some person other than the husband without his knowledge, prostitution by the woman before marriage without the husband's knowledge, notorious licentiousness on the part of the husband before marriage without the wife's knowledge, conviction of an infamous offence before marriage without the other party's knowledge. Wisconsin: adultery, impotence, sentence to imprisonment for three years or more, desertion for a year, cruel treatment, habitual drunkenness for a year, voluntary separation for five years, neglect of the husband to provide a maintenance, or such conduct toward the wife as renders it unsafe and improper for her to live with him.—The subject of divorce has been extremely troublesome in the United States, owing to the diversity of laws, and the facility with which parties might pass from one state to another and obtain divorces without the knowledge of other parties concerned. Some very nice questions have arisen and been passed upon; and though the decisions are not wholly harmonious, the following may be stated as the general conclusions: 1. A bona fide residence of either party in any state will authorize such party to institute a proceeding for divorce in its courts for any cause permitted by its laws, whether arising there or elsewhere. 2. An attempt by one not a resident to institute such proceedings is a fraud upon the law and upon the other party, if such other party is ignorant of it; and the courts get no jurisdiction of such proceedings, and their decree, if one is made, is inoperative, and may be treated elsewhere as void. 3. If a bona fide resident institutes proceedings, but service cannot be made upon the other party by reason of absence from the state, it is competent to provide by law for service by publication, and such publication will be sufficient for the purposes of a dissolution of the marriage, but not sufficient for other purposes; as, for instance, the passing of a decree for alimony, or of an order for the custody of children. Before a party can be bound in such matters, he must have personal notice. 4. A divorce once granted with competent jurisdiction in one state is valid in any other state or country, and it leaves both parties at liberty to marry again, unless the statute where the divorce is granted otherwise provides; and even then it is presumed such statute could have no force beyond the limits of the state. It was formerly held in England that a marriage contracted in that country could not be dissolved elsewhere, and this led to serious contentions; but the contrary is now settled by the house of lords (9 Bligh's Reports, 79).