Vickipedia

DIVORCE AND MATRIMO’NIAL COURT. An Act of Parliament of 1857, with amending acts, changed the law of England on the subject of divorce. By the first of these acts, the jurisdiction in divorce causes is transferred from the ecclesiastical courts to a new court constituted for the purpose, which, since the Judicature Act (1873), is included in the Probate, Divorce, and Admiralty Division of the High Court of Justice. It is provided that either spouse may obtain a divorce on the ground of adultery; but in case the wife is petitioner, the adultery must be accompanied by cruelty or desertion. By 23 and 24 Vict. c. 144, the power to pronounce a decree of divorce, which was at first reposed in the whole court, is given to the judge who hears the cause; but in this case the decree so pronounced is a decree nisi, and cannot become final for at least six months. After decree of divorce, the offending party is free to marry again even with the paramour. But it is enacted, 20 and 21 Vict. c. 85, sect. 57—58, that no clergyman shall be compelled to solemnize the marriage of any person who has been divorced. He must, however, allow another clergyman, if willing to do so, to perform the marriage. A party applying for a divorce will not be allowed to obtain judgment, should it appear that he or she has been guilty of recrimination by committing the same offence, or that there is collusion between the parties in order to procure the divorce. Parties also who have condoned the offence —that is, who after it has been discovered have consented again to live as husband and wife—will not be allowed to obtain a divorce.

In order to guard against fraud by parties conniving to procure a divorce, power is given to the Queen’s proctor, by 23 and 24 Vic. c. 144, to interpose, in case he have reasonable ground to suspect collusion or recrimination, in order to oppose a petition for divorce. By these acts, parties are also entitled to obtain a judicial separation on the ground of adultery, cruelty, or desertion. Judicial separation is declared to be in place of a separation a mensá et thoro. A married woman, having obtained decree of judicial separation, is declared to be in all respects as a feme solo in regard to any property that she has or may acquire. Even before obtaining a separation, a woman deserted by her husband may obtain from the court a protection for any property which she may acquire by her own industry.

From the conflict of laws in various countries on the subject of divorce, questions have frequently arisen as to the competency of a sentence of divorce by a tribunal having power according to the lex loci to pronounce such sentence, to annul a marriage contracted in a country where such divorce is not allowed. It appears now to be the generally received opinion, that wherever parties are domiciled they will be allowed to avail themselves of the laws of this domicile. But the courts will not recognize a transient visit to a foreign country as sufficient ground to sustain a divorce. On the subject of this article, see Paterson’s Compendium of English and Scotch Law, Eraser’s Personal and Domestic Relations and Swabey On the Divorce and Matrimonial Act.