DIVORCE
DIVO’RCE, is defined by a Scottish writer to be ‘ the disruption, by the act of the law, of the conjugal tie, made by a competent court on due cause shown.’—Fraser, Pers. and Domestic Relations, i. 645. This definition correctly expresses the law of divorce as it now stands in the United Kingdom. There are some differences of detail in the working of the law in England and Scotland, which will be noticed below.
The desire to obtain a release from the matrimonial bond has existed at all times and under all legal systems. In heathen nations, this release was often granted on the slightest grounds. Even among the Romans, marriage was regarded as little more than a conventional union, to be observed so long only as it suited the mutual convenience of the spouses. Christian nations, on the other hand, adopting as the basis of their systems the Scriptural law, as declared Matt. xix. 9, Mark x. 9—11, Luke xvi. 18, and 1st Cor. vii. 10, 11, are agreed in considering marriage as a sacred tie, not to be dissolved except on the ground of unfaithfulness to the marriage vow. Even this limited ground for dissolution of marriage is denied by a large portion of the Christian world. By the civil law, as it existed for some centuries after Christianity, a greater laxity was allowed in regard to divorce. The Emperor Constantine was the first to prohibit dissolution of marriage by simple consent of the parties. This practice was again revived under the Emperors Theodosius and Valentinian; and though those emperors subsequently rescinded this edict, yet the rule as to the grounds on which marriage might be dissolved continued to fluctuate.
By the canon law, marriage was regarded as a sacrament; and though marriages contracted in disobedience to certain rules might be declared null ab initio, a marriage validly contracted would not be dissolved except by papal dispensation. But the rule of the canon law was not uniformly adopted by the states of Europe, and it was not till the famous Council of Trent issued a decree, in its 24th session, in 1562, declaring marriage indissoluble even after the adultery of one or both of the parties, that a uniform rule on the subject was established. But before this decree was issued, the reformation had made progress throughout Europe, and thus a change again took place in regard to the law of divorce. It should be observed, that though by the canon law divorce a vinculo matrimonii was unattainable, parties might obtain a separation a mensá et thoro. The nature of this remedy will be explained below.
Roman Catholic countries adopted the principle laid down by the Council of Trent, and this rule continues to be in force in most countries which are in the Roman Catholic communion. But by the Code Civile of France, divorce is allowable on the ground of adultery and certain other causes. Countries which adopted the reformed religion, have varied greatly in the rules established in regard to the question of divorce. In Holland, divorce is permitted on the ground of adultery and desertion. In America, the practice varies in different states. ‘ In several of them no divorce Is granted but by special act of the legislature, according to the English practice; and in others, the legislature itself is restricted from granting them, but it may confer the power on courts of justice. So strict and scrupulous has been the policy of South Carolina, that until recently there was no means of obtaining a divorce of any kind, either by sentence of a court of justice or by act of the legislature. In all other states, divorce a vinculo may be granted by courts of justice for adultery. In New York, the jurisdiction of the courts as to absolute divorce for causes subsequent to marriage is confined to the single cause of adultery; but in most of the other states, in addition to adultery, intolerable ill-usage or wilful desertion, or unheard-of absence, or habitual drunkenness, or some of them, will authorize a decree for divorce a vinculo under different modifications and restrictions.’—Kent, Comm. iv. 105. In England, previous to the passing of the late Divorce and Matrimonial Act, marriage was by the common law indissoluble. It was, indeed, competent to obtain a declaration of nullity of marriage on the ground of relationship, previous marriage of one of the parties, mental or physical incapacity, or coercion. But the judgment so obtained was not a decree of divorce, but a declaration that the marriage tie between the parties had never really been contracted. A wife may now obtain a divorce on the ground of the husband’s incestuous adultery; or of his bigamy with adultery; or of rape; or of sodomy; or of adultery coupled with gross cruelty; or of adultery coupled with desertion without reasonable excuse for two years.
The husband may obtain a divorce on the ground of the wife’s adultery. But neither party can obtain a divorce on the ground of mere desertion alone, however long continued. The court may order the husband to pay a divorced wife a certain sum for her maintenance during their joint lives. A decree of divorce does not come into full force until six months after it is pronounced. The bars to a divorce are condonation, connivance, or collusion. When divorced, the parties are at liberty to marry with third parties. When the divorce is on the ground of adultery, both parties may be examined as witnesses, 32 and 33 Vict. c. 68.
In Scotland, divorce may be obtained on the ground of adultery or wilful desertion. Immediately after the reformation, the courts in Scotland recognized the right of either spouse to obtain a divorce on the ground of adultery. And in the year 1573, a statute was passed declaring that, in case either husband or wife should desert without due cause for four years, the injured party might raise an action of adherence, and, in case redress was not obtained, a decree of divorce might be pronounced. In Scotland, it is not permitted that a marriage should take place between the offending parties. The effect of a decree of divorce on the pecuniary interests of the parties, is to cause the offender to forfeit all benefit which might accrue to him or her from the marriage. Separation a mensá et thoro may also be obtained in Scotland on the ground of ill-usage, and perhaps desertion (q. v.). Condonation and collusion, but not recrimination, are, in Scotland, a bar to obtaining a dissolution of marriage on the ground of adultery.