According to American practice, divorce is the termination by proper
legal authority, sometimes legislatively but usually judicially, of a
marriage which up to the time of the decree was legal and binding. It is
to be distinguished from a decree of nullity of marriage, which is
simply a legal determination that no legal marriage has ever existed
between the two parties. It is also to be distinguished from a decree of
separation, which permits or commands the parties to live apart, but
does not completely and for all purposes sever the marriage tie. The
matrimonial law of England, as at the time of the declaration of
independence, forms part of the common law of the United States. But as
no ecclesiastical courts have ever existed there, the law must be
considered to have been inoperative. There is no Federal jurisdiction in
divorce, and it is a question for the law of each separate state; and
though it is competent to Congress to authorize divorces in the
Territories, still it appears that this subject like others is usually
left to the territorial legislature. In the different states, and in
England, divorces were at first granted by the legislatures, whether
directly or by granting special authority to the tribunals to deal with
particular cases. This practice fell into general disrepute, and by the
constitution of some states such divorces are expressly prohibited.
Upon the subject of divorce in the United States, and, to some extent,
in foreign countries, a careful investigation was made by the American
Bureau of Labour, and its report covered the years 1867 to 1886; a
further report for the period 1887 to 1906 has also been published by
the Federal Census Bureau. The number of divorces was in 1886 over
25,000, and in 1906 was over 72,000, about double the number reported
for that year from all the rest of the Christian world. As divorce
presupposes a legal marriage, the amount of divorce, or the
divorce-rate, is best stated as the ratio between the number of divorces
decreed during a year and the number of subsisting marriages or married
couples. The usual basis is 100,000 married couples. In 1898-1902 the
divorce-rate was 200 divorces (400 people) to 100,000 married couples.
This is equivalent to more than one divorce annually to each 1400
people. The several states differ in divorce-rate, from South Carolina,
with no provision for legal divorce, to Montana and Washington, where
the rate is two and a half times the average for the country. In general
the rate is about the same in the North as in the South, but greater in
the Central states than in the East, and in the Western than in the
Central states; but to this rule the New England states, Louisiana, New
Mexico and Arizona are exceptions. The New England states have a higher
rate than their geographical position would lead one to expect, and the
other three, owing doubtless, in part at least, to the influence of the
Roman Catholic Church, have a lower rate than the states about them. The
several state groups had in 1900 the following divorce-rates per
100,000: South Atlantic, 196; North Atlantic, 200; South Central, 558;
North Central, 510; Western, 712. The divorce-rate in the United States
increased rapidly and steadily in forty years from 27 in 1867 to 86 in
1906. But distinct tendencies are traceable in different regions. In the
North Atlantic group the rate rose by 58%, in the North Central by 158%,
in the Western by 223%, in the South Atlantic by 437%, and in the South
Central by 685%. The great increase in the South was mainly due to the
spread of divorce among the emancipated negroes. Each state determines
for itself the causes for which divorce may be granted, and no general
statement is therefore possible.
The ground pleaded for a divorce is seldom an index to the motives which
caused the suit to be brought. This is determined by the character of
the law rather than by the state of mind of the parties; and so far as
the individuals are concerned, the ground alleged is thus a cloak rather
than a clue or revelation. Still those causes which have been enacted
into law by the various state legislatures do indicate the pleas which
have been endorsed by the social judgment of the respective communities.
In the United States exclusive of Alaska and the recent insular
accessions there are forty-nine different jurisdictions in the matter of
divorce. Six out of every seven allow divorce for desertion, adultery or
cruelty; and of the 945,625 divorces reported with their causes during
the twenty years 1887-1906 nearly 78% were granted for some one of these
three causes, viz. 39% for desertion, 22% for adultery, and 16% for
cruelty. Probably nearly 9% more were for some combination of these
causes. Three other grounds for divorce are admitted as legal in many or
most American states, viz. imprisonment in 39, habitual drunkenness in
38, and neglect to provide in 22. About 98% of American divorces are
granted on some one or more of these six grounds. In general the
legislation on the subject of the causes allowed for divorce is most
restrictive in the states on the Atlantic coast, from New York to South
Carolina inclusive, and is least so in the Western states. The slight
expense of obtaining a divorce in many of the states, and the lack of
publicity which is given to the suit, are also important reasons for the
great number of decrees issued. The importance of the former
consideration is reflected in the fact that the divorce-rate for the
United States as a whole shows clearly, in its fluctuations, the
influences of good and bad times. When times are good and the income of
the working and industrial classes likely to be assured, the
divorce-rate rises. In periods of industrial depression it falls,
fluctuating thus in the same way and probably for the same reason that
the marriage-rate in industrial communities fluctuates. In two-thirds of
the divorce suits the wife is the plaintiff, and the proportion slightly
increased in the forty years. In the Northern states the percentage
issued to wives (1887-1906) was 71, while in the Southern states it was
only 56. But where both parties desire a decree, and each has a legal
ground to urge, a jury will usually listen more favourably to a woman's
suit.
Divorce is probably especially frequent among the native population of
the United States, and among these probably more common in the city than
in the country. This statement cannot be established absolutely, since
statistics afford no means of distinguishing the native from the
foreign-born applicants. It is, however, the most obvious reason for
explaining the fact that, while in Europe the city divorce-rate is from
three to five times as great as that of the surrounding country, the
difference in the United States between the two regions is very much
less. In other words, the great number of foreigners in American cities
probably tends to obscure by a low divorce-rate the high rate of the
native population. Divorce is certainly more common in the New England
states than in any others on the Atlantic coast north of Florida, and it
is not unlikely that wherever the New England families have gone divorce
is more frequent than elsewhere. For example, it is much more common in
the northern counties of Ohio settled largely from New England than in
the southern counties settled largely from the Middle Atlantic states.
There are two statements frequently made regarding divorce in the United
States which do not find warrant in the statistics on the subject. The
first is, that the real motive for divorce with one or both parties is
the desire for marriage to a third person. The second is, that a very
large proportion of divorces are granted to persons who move from one
jurisdiction to another in order to avail themselves of lax divorce
laws. On the first point the American statistics are practically silent,
since, in issuing a marriage licence to parties one or both of whom have
been previously divorced, no record is generally made of the fact. In
Connecticut, however, for a number of years this information was
required; and, if the statements were trustworthy, the number of persons
remarrying each year was about one-third the total number of persons
divorcing, which is probably a rate not widely different from that of
widows and widowers of the same age. Foreign figures for Switzerland,
Holland and Berlin indicate that in those regions the proportion of the
divorced who remarry speedily is about the same as that of widows and
widowers. What statistical evidence there is on the subject therefore
tends to discredit this popular opinion. The evidence on the second
point is more conclusive, and has gone far towards decreasing the demand
for a constitutional amendment allowing a federal marriage and divorce
law. About four-fifths of all the divorces granted in the United States
were issued to parties who were married in the state in which the decree
of divorce was later made; and when from the remaining one-fifth are
deducted those in which the parties migrated for other reasons than a
desire to obtain an easy divorce, the remainder would constitute a very
small, almost a negligible, fraction of the total number.
It is difficult, perhaps impossible, to say how far the frequency of
divorce in the United States has been or is a social injury; how far it
has weakened or undermined the ideal of marriage as a lifelong union
between man and woman. In this respect the question is very like that of
illegitimacy; and as the most careful students of the latter subject
agree that almost no trustworthy inference regarding the moral condition
of a community can be derived from the proportion of illegitimate
children born, so one may say regarding the prevalence of divorce that
from this fact almost no inferences are warranted regarding the moral or
social condition of the population. It is by no means impossible, for
example, that the spread of divorce among the negro population in the
South marks a step in advance from the condition of largely unregulated
and illegal unions characteristic of the race immediately after the war.
The prevalence of divorce in the United States among the native
population, in urban communities, among the New England element, in the
middle classes of society, and among those of the Protestant faith,
indicates how closely this social phenomenon is interlaced with much
that is characteristic and valuable in American civilization. In this
respect, too, the United States perhaps represent the outcome of a
tendency which has been at work in Europe at least since the
Reformation. Certainly the divorce-rate is increasing in nearly every
civilized country. Decrees of nullity of marriage and decrees of
separation not absolutely terminating the marriage relation are
relatively far less prevalent than they were in the medieval and early
modern period, and many persons who under former conditions would have
obtained relief from unsatisfactory unions through one or the other of
these avenues now resort to divorce. The increasing proportion of the
community who have an income sufficient to pay the requisite legal fees
is also a factor of great importance. The belief in the family as an
institution ordained of God, decreed to continue "till death us do
part," and in its relations typifying and perpetuating many holy
religious ideas, probably became weakened in the United States during
the 19th century, along with a weakening of other religious conceptions;
and it is yet to be determined whether a substitute for these ideas can
be developed under the guidance of the motive of social utility or
individual desire. In this respect the United States is, as Mr Gladstone
once wrote, a _tribus praerogativa_, but one who knows anything of the
family and home life of America will not readily despond of the outcome.
The great source of American statistical information is the
governmental report of over 1000 pages, _A Report on Marriage and
Divorce in the United States 1867 to 1886, including an Appendix
relating to Marriage and Divorce in Certain Countries of Europe_, by
Carroll D. Wright, Commissioner of Labour; together with the further
report for 1887 to 1906. The statistics contained in the former volume
have been analysed and interpreted in W. F. Willcox's _The Divorce
Problem: A Study in Statistics_ (Columbia University, New York, 1891,
1897). Further interpretations are contained in an article in the
_Political Science Quarterly_ for March 1893, entitled "A Study in
Vital Statistics." The best legal treatise is probably Bishop on
_Marriage, Divorce, and Judicial Separation_. See also J. P.
Lichtenberger, _Divorce: A Study in Social Causation_ (New York,
1909). (W. F. W.)