legislation for Alabama, applies also to Mississippi during the
territorial stage; and, five years after the state was erected,
its provisions, so far as they relate to the causes and kinds
of divorce, were re-enacted in 1822.[222] In 1840 the time of
desertion to warrant a total divorce was shortened from five to
three years.[223] Ten years thereafter it was provided that any
person already having a separation from bed and board may, by
application to the chancery court of the district or the circuit
court of the county where he resides, and producing a transcript of
the decree, be divorced from the bond of matrimony. For the future
the same privilege is extended to each of the parties to a partial
divorce when they "have lived separate and apart from each other
for the term of four years."[224] By a statute of 1858 this term is
reduced to three years; and only those who have thus lived apart
after partial separation are now allowed to petition for the entire
dissolution of the marriage bond.[225] But in 1860, apparently to
meet special cases, a law provides simply for a divorce _a vinculo_
where the persons, prior to the act, have lived apart in the state
four years without collusion.[226] A peculiar cause, a product of
the Civil War, appears in 1862. The wife is then allowed a complete
divorce when her husband is in the army or navy of the United States
or resides in one of the United States in preference to one of
the states of the Confederacy.[227] By a statute of 1863 a second
marriage is valid when the first spouse has been five years absent;
and such spouse is to be presumed dead in any question of alimony
arising under the second marriage.[228] In 1867 any citizen marrying
out of the state, whose spouse commits adultery before his return to
the state, may after such return apply for a total divorce, provided
he has not cohabited after discovery of the offense.[229] The causes
of separation from bed and board, which had remained unaltered since
1803, were extended in 1857. A partial divorce is then allowed for
habitual drunkenness, as well as for extreme cruelty in either
person; while the wife is granted the same relief whenever the
husband, being of sufficient ability, wantonly and cruelly fails
to provide for her support; but a decree for partial separation
shall in no case bar the right to full divorce from the bond of
wedlock.[230] A very important relaxation in the law takes place in
1871. The two causes of partial divorce just mentioned--habitual
drunkenness and cruel treatment--become grounds for total divorce;
and the term of desertion is shortened from three to two years.[231]
[222] _Stat. of Miss. Ter._ (1816), 252-54; and act of June 15,
1822, in _Code of Miss._ (1848), 495, 496.
[223] Act of Feb. 13: _Laws_ (1840), 125.
[224] Act of Feb. 14: _Laws_ (1850), 122.
[225] Act of Nov. 29: _Laws_ (1858), 166.
[226] Act of Feb. 9: _Laws_ (1860), 202.
[227] Act of Jan. 29, 1862: _Laws_ (1861-62), 246.
[228] Act of Dec. 1, 1863: _Laws_ (1862-63), 125, 126.
[229] Act of Feb. 21, 1867: _Laws_ (1866-67), 387.
[230] _Rev. Code_ (1858), 334.
[231] By the _Rev. Code_ (1871): see WRIGHT, _Report_, 154; and
WILLCOX, _The Divorce Problem_, 52.
By the present code of Mississippi, therefore, limited divorce is
not authorized. But courts having chancery jurisdiction may decree
entire release from the marriage bond to the injured person (1) for
natural impotency; (2) adultery, except by collusion or where there
is cohabitation after knowledge of the offense; (3) sentence to the
penitentiary when there is no pardon before imprisonment begins;
(4) wilful continued, and obstinate desertion for two years; (5)
habitual drunkenness; (6) "habitual and excessive use of opium,
morphine, or other like drug;" (7) habitual cruel and inhuman
treatment;[232] (8) insanity or idiocy at the time of the marriage,
if the party complaining did not then know of the infirmity; (9)
previous marriage with some other person; (10) pregnancy of the
wife by another man at the time of the marriage, the husband being
ignorant of the fact; (11) intermarriage within the degrees of
kindred prohibited by law.[233]
[232] For interpretation of "cruel treatment" see Johns _v._
Johns, 57 _Miss._, 530.
[233] _Ann. Code of Miss._ (1892), 419, 420.
The first statute defining the grounds of divorce for Missouri
was approved in 1807 by the legislature of Louisiana Territory.
Either a full or a partial divorce was then authorized when either
person (1) is naturally impotent; (2) has entered into the marriage
in violation of a "previous vow;" (3) has committed adultery; or
(4) has been guilty of wilful and malicious desertion, without a
reasonable cause, for four years. The general court may likewise
grant the wife a separation from bed and board when the husband
shall either abandon his family or turn her "out of doors, or by
cruel and barbarous treatment endanger her life, or offer such
indignities to her person as to render her condition intolerable
and thereby force her to withdraw from his house or family."[234]
This law remained in force until 1833, when "extreme cruelty" and
conviction of an "infamous crime" were added as causes warranting
either the husband or wife to petition for absolute divorce.[235]
The number is raised to seven by the revision of 1835, which is
silent as to partial divorce; for "indignities" to the person of
either such as already described are now made a legal ground for
entire dissolution of marriage.[236] Vagrancy[237] of the husband
and habitual drunkenness of either for the space of two years came
next in 1845; and four years thereafter the introduction of two more
causes completed the full quota of eleven grounds on which total
divorce is still allowed by Missouri law. The act of 1849 authorizes
a divorce to the man when the woman at the time of the marriage, or
when it was solemnized, was pregnant by another person without the
intended husband's knowledge; and to the wife, when the man prior to
the marriage or its solemnization had been convicted of a felony or
infamous crime without the woman's knowing it when the marriage took
place. The benefits of this cause may now accrue to both persons;
otherwise no essential change in the statute has been made for half
a century.[238]
[234] Act of May 13, 1807: _Laws of a Pub. and Gen. Nature_
(1842), 1, 90-92.
[235] _Ibid._, II, 360.
[236] _Rev. Stat._ (1835), 225 (Jan. 24). The "indignities" need
not be offered to the person: 5 _Missouri_, 278; 19 _Missouri_,
352; 16 _M. A._, 422; 17 _M. A._, 390; but one or two such acts
are insufficient: 34 _Missouri_, 211.
[237] According to the code, a "vagrant" is "every person who may
be found loitering around houses of ill-fame, gambling houses, or
places where liquors are sold or drunk, without any visible means
of support, or shall attend or operate any gambling device or
apparatus;" and "every able-bodied married man who shall neglect
or refuse to provide for the support of his family, and every
person found tramping or wandering around from place to place
without any visible means of support." Besides being liable to
suit for divorce, such a husband may be sentenced to not less
than twenty days in the county jail, or to pay a fine of 20
dollars, or both: _Rev. Stat._ (1889), I, 917; _ibid._ (1899), I,
621. On vagrancy as a cause see 26 _M. A._, 647.
[238] Act of March 12: _Laws_ (1849), 49, 50; _Rev. Stat._
(1889), I, 1029-32; _ibid._ (1899), I, 741. The circuit courts
have jurisdiction; and process is as in civil suits, except that
the answer of the defendant need not be under oath.
In Florida, since 1828, divorce may be sought only by bill in
chancery; and, since 1885, the equity courts have had exclusive
jurisdiction, granting only complete dissolution of the marriage
bond,[239] although in that state separate maintenance is equivalent
to separation from bed and board. The causes now sanctioned are: (1)
intermarriage within the forbidden degrees; (2) natural impotence of
the defendant; (3) adultery in either party; (4) excessive cruelty;
(5) habitual indulgence in violent and ungovernable temper;[240]
(6) habitual intemperance; (7) wilful, obstinate, and continued
desertion for one year; (8) a divorce obtained by the defendant in
any other state or country; (9) having a husband band or wife living
at the time of the marriage; (10) incurable insanity.
[239] Acts of Oct. 31, 1828, and Feb. 4, 1835, in _Rev. Stat. of
Fla._ (1892), 504; or THOMPSON, _Manual or Digest_ (1847), 47,
222-24. Incurable insanity is made a legal ground of divorce by
_Acts_ (1901), 118-21.
[240] On the allegations necessary see Johnson _v._ Johnson,
23 _Florida_, 413; Burns _v._ Burns, 13 _Florida_, 369; and on
what does not constitute a cause, Crawford _v._ Crawford, 17
_Florida_, 180.
The Louisiana code of 1808 provides for the annulment of marriage
on legal grounds; and allows separation from bed and board (1) for
adultery of the wife; or (2) for that of the husband "when he has
kept his concubine in their common dwelling;" (3) when either has
been guilty of excesses, cruel treatment, or outrages toward the
other, if the ill-treatment is of such a nature as to render their
living together insupportable; (4) on account of a public defamation
by one of the married persons toward the other; (5) for abandonment;
or (6) an attempt upon the life of the other by either spouse.[241]
[241] _Digest of Civil Laws Now in Force_ (1808), 26, 28, 30;
also _Code Civil_ (1825), 80, 87-91; LISLET, _Gen. Digest_, II, 3
ff.; _Civil Code of La._ (1853), 19.
In 1827 the "district courts throughout the state and the parish
court of New Orleans" were given "exclusive original jurisdiction
in cases of divorce," with appeal to the supreme court. They were
authorized to grant total divorce (1) for adultery of the wife;
or (2) for that of the husband "when he has kept his concubine in
the common dwelling, or openly and publicly in any other;" (3)
for excesses, cruel treatment, or outrages, as conditioned for
separation in 1808; (4) condemnation of either married person to
an "ignominious punishment;" (5) abandonment for five years when
the offender has "been summoned to return to the common dwelling,"
as is provided for in cases of separation from bed and board. It
is, however, especially declared that, except when the cause is
adultery or ignominious punishment, no full divorce shall be granted
"unless a judgment of separation from bed and board shall have been
previously rendered," and unless two years shall have thereafter
expired without reconciliation. But in the two cases excepted above
a "judgment of divorce may be granted in the same decree which
pronounced the separation from bed and board."[242] The fifth cause
approved in 1827 was supplemented by a new ground in 1832. Whenever
either spouse is charged with an infamous crime and is a fugitive
from justice beyond the state, a total divorce may be claimed by the
other, without need of a previous decree of separation, on producing
evidence of the actual guilt and flight of the accused.[243]
"Habitual intemperance" on the part of either husband or wife was
added to the list in 1855;[244] and in 1857 the time which must
elapse between the decrees for partial and full divorce was reduced
to one year.[245] An "omnibus" clause comes next in 1870, complete
dissolution of wedlock being then permitted "for any such misconduct
repugnant to the marriage covenant as permanently destroys the
happiness of the petitioner;" but it was repealed in 1877.[246]
[242] Act of March 19: _Acts_ (1827), 130-35; also in _Civil
Code_ (1853), 19, 20. Such is still the law, except as to the
term between the decrees.
[243] Act of April 2: _Acts_ (1832), 152; also in _Civil Code_
(1853), 20, 21.
[244] _Acts_ (1855, March 14), 376.
[245] Act of March 16: _Acts_ (1857), 137; VOORHIES, _Rev. Stat.
Laws_ (1876), 313.
[246] Compare the act of March 9: _Acts_ (1870), 108; with _Acts_
(1877), 192. VOORHIES, _op. cit._ (1884), 204-6, gives the law
regarding the causes of divorce just as _ibid._ (1876), 312-14;
and _ibid._ (1870), 18 ff.
For the sake of convenience, the present law of Louisiana covering
the grounds of divorce--whose evolution was thus completed in
1870--may now be summarized. Absolute divorce, without need of a
previous decree of separation, is permitted where the husband or
wife may have (1) been sentenced to an infamous punishment; or
(2) been guilty of adultery.[247] A limited divorce, which may
be followed in each case by a total divorce after one year, is
authorized (1) for adultery on the part of either spouse; (2) when
the other party has been condemned to an infamous punishment; (3) on
account of the habitual intemperance of one of the married persons;
(4) excesses, cruel treatment, or outrages of one of them toward the
other; (5) for public defamation; (6) for abandonment on the part
of one of the married persons; (7) for an attempt of one of them
against the life of the other; (8) when the husband or wife has been
charged with an infamous offense and shall have fled from justice,
on producing proof of the actual guilt or flight.[248] An important
modification was made in 1898. The person in whose favor a limited
divorce has been rendered may apply and get a full divorce in one
year, while the adverse party must wait two years before fore he can
secure a similar decree, in the meantime the wife's right to alimony
remaining unimpaired.[249]
[247] As in 1827, in these cases, a divorce may be "granted in
the same decree which pronounces the separation from bed and
board."
[248] _Rev. Civil Code_ (1888), 68 ff.; _ibid._ (1897), 305,
306; _ibid._ (1870), 18 ff. _Cf._ WRIGHT, _Report_, 97, 98.
The habitual intemperance (Cause 3) and cruel treatment (Cause
4) must still be of "such a nature as to render their living
together insupportable."
"The abandonment (Cause 6) with which the husband or wife is
charged must be made to appear by the three reiterated summonses
made to him or her from month to month, directing him or her to
return to the place of the matrimonial domicile and followed by
a judgment which has sentenced him or her to comply with such
request, together with a notification of the said judgment,
given to him or her from month to month for three times
successively."--_Rev. Civil Code_ (1888), 70.
[249] Act of July 4, 1898: _Acts of the Assembly_, 34.
The divorce legislation of the "Republic of Texas" has remained in
force with little modification to the present hour. The district
courts still have jurisdiction. By the act of January 6, 1841, a
marriage may be declared null and void for impotency; and absolute
divorce may be granted as follows: I. In favor of the husband:
(1) when the wife is guilty of adultery; or (2) has left his bed
and board for three years with the intention of abandonment. II.
In favor of the wife: (1) when the husband has left her for three
years with like intention; or (2) has abandoned her and lived in
adultery with another woman. III. In favor of either spouse for
excesses, cruel treatment, or outrages toward the other, if the
ill-treatment is of such a nature as to render their living together
insupportable.[250] These three groups appear unaltered in the
present code; and there is added the following: IV. In favor of
either husband or wife, "when the other shall have been convicted,
after marriage, of a felony and imprisoned in the state prison;
_provided_, that no suit for divorce shall be sustained" because
of such conviction "until twelve months after final judgment," nor
"then if the governor shall have pardoned the convict;" and provided
also that the conviction has not been obtained on the testimony of
either spouse.[251]
[250] _Laws of the Rep. of Texas_, V, 19-22; also in DALLAM,
_Digest_ (1845), 80, 81. _Cf._ the earlier act of 1837, in
DALLAM, _op. cit._, 79.
[251] _Rev. Civil Stat._ (1888), I, 885-88; _Ann. Civil Stat._
(1897), I, 1095, 1096. No. IV was added by act of May 27, 1876:
_Laws_, 16.
The grounds of divorce recognized in the statutes of Arkansas have
been in force since 1838. The circuit courts may now grant total or
limited divorce for the following causes: (1) when either spouse
was at the time of the marriage and still is impotent of body; (2)
when either deserts the other and remains absent one year without
reasonable cause; (3) when a former spouse was living at the time
of the marriage; (4) when either is convicted of felony or other
infamous crime; or (5) shall be addicted to habitual drunkenness
for the space of one year; or (6) shall be guilty of such cruel and
barbarous treatment as to endanger the life of the other; or (7)
shall offer such indignities to the person of the other as shall
render his or her condition intolerable; (8) when subsequent to the
marriage either person has committed adultery.[252]
[252] _Digest of Ark._ (1894), 680-83; _Rev. Stat._ (1838), 333.
Incurable insanity appears as a ground in _Civil Code_, sec. 464,
as amended in 1873; but it was dropped by _Acts_ (1895), 76.
By act of Congress,[253] certain general laws of Arkansas, including
those of divorce, are extended to the Indian Territory; so the
causes just enumerated are there in force.[254] Limited divorce does
not exist in Oklahoma; but in that territory the district court
may grant full dissolution of wedlock (1) when either person had
a spouse living at the time of the marriage; (2) for abandonment
during one year; (3) for adultery; (4) for impotency; (5) "when the
wife at the time of the marriage was pregnant by another than her
husband;" (6) for extreme cruelty; (7) for fraudulent contract; (8)
for habitual drunkenness; (9) for gross neglect of duty; (10) for
conviction and imprisonment in the penitentiary for a felony after
marriage.[255]
[253] Act of May 2, 1890: _U. S. Stat. at Large_, XXVI, chap.
182, p. 81.
[254] _Ann. Stat. of Ind. Ter._ (1899), 324.
[255] WILSON, _Stat. of Okla._ (1903), II, 1119.
"Arizona, from 1871-77, in addition to six ample reasons for
divorce, had an 'omnibus clause' in operation which is a marvelous
piece of legislation." "Whereas," we are told, "in the developments
of future events, cases may be presented before the courts falling
substantially within the limits of the law, as hereinbefore stated,
yet not within its terms, it is enacted, that whenever the judge
who hears a cause for divorce deems the case to be within the reason
of the law, within the general mischief the law is intended to
remedy, or within what it may be presumed would have been provided
against, by the legislature establishing the foregoing causes of
divorce had it foreseen the specific case and found language to meet
it without including cases not within the same reason, he shall
grant the divorce." Well was this called, continues Richberg, "the
'seventh wonder' of Arizona's divorce code."[256]
[256] RICHBERG, "Incongruity of the Divorce Laws in the United
States," _Publications of Mich. Pol. Sc. Association_, No. 4, p.
58.
For this act of Feb. 16, 1871, see _Comp. Laws of the Ter. of
Ariz., 1864-71_ (1871), 303, 304. The other six causes referred
to in the text are (1) impotency; (2) marriage of a female under
fourteen without parental consent and not ratified by her after
reaching that age; (3) adultery in either without collusion
or subsequent voluntary cohabiting; (4) extreme cruelty, or
habitual intemperance, wilful desertion for one year, or neglect
to provide for the wife; (5) force or fraud; (6) conviction of
either of felony after marriage. For the earlier law see the
_Howell Code_, 232 ff.; and the amendments of 1865, in _Comp.
Laws_ (1871), 297-303.
A later statute, somewhat more cautiously, allows the district court
to decree a total divorce (1) when the husband or wife is guilty
of excesses, cruel treatment, or outrage toward the other, whether
by the use of personal violence or any other means; (2) in favor
of the husband when his wife shall have been taken in adultery; or
(3) when she has voluntarily left his bed and board for the space
of six months with the intention of abandonment; (4) in favor of
the wife when the husband has left her for the same time with a
like motive; (5) for his habitual intemperance; (6) for his wilful
neglect to provide the necessaries or comforts of life during the
same period, having sufficient ability, or failing to do so by
reason of his idleness, profligacy, or dissipation; or (7) when he
shall be taken in adultery; (8) in favor of either spouse when the
other has been convicted after marriage of a felony and confined in
any prison. Suit on the last-named ground cannot be sustained until
six months after final judgment, nor when the husband or wife was
convicted on the testimony of the other.[257] This law is superseded
by the act of 1903. Absolute divorce may now be granted on complaint
of the aggrieved for (1) adultery; (2) physical incapacity; (3)
conviction and imprisonment for felony, provided that suit may not
be sustained until one year after judgment and that conviction has
not been had on the testimony of either spouse; (4) wilful desertion
for one year, or for habitual intemperance; (5) excesses, cruel
treatment, or outrages, whether by the use of personal violence or
any other means; (6) to the wife for the husband's neglect for one
year to provide her with common necessaries of life, having the
ability, or his failure to do so because of idleness, profligacy,
or dissipation; (7) to either for the other's conviction of felony
before marriage without the innocent person's knowledge; (8) to the
husband when without his knowledge the wife was pregnant by another
man at the time of the marriage.[258]
[257] _Rev. Stat. of Ariz._ (1887), 373, 374; _cf._ WRIGHT,
_Report_, 90. By the act of 1871 the period of desertion is fixed
at one year; and it is two years by the _Howell Code: Compiled
Laws_ (1871), 298, 304.
[258] _Rev. Stat. of Ariz._ (1901), 812-15; amended by _Acts_
(1903), 52.
In New Mexico the district courts may grant absolute divorce for
(1) abandonment; (2) adultery; (3) impotency; (4) when without
the husband's knowledge the wife at the time of the marriage was
pregnant by another man; (5) cruel and inhuman treatment; (6)
to the wife for the husband's neglect to support; (7) habitual
drunkenness; (8) conviction and imprisonment for felony subsequent
to the marriage.[259] Separation _a mensa et thoro_ does not exist;
but in the laws of 1884 there is a curious provision, which seems
designed, in a truly patriarchal spirit, to soothe domestic ills
and check matrimonial transgressions through intervention of the
local magistrate. One is left in little doubt as to the right ideal
of family life, being assured that "the duties and relations that
should exist between married persons are the following, to wit: The
husband is the head of the family; he, nevertheless, owes fidelity,
favor, support, and protection to the wife; he should make her a
participant in all the conveniences he enjoys; he should show her
the utmost and every attention in cases of sickness, misfortune or
accident, and provide for her the necessaries of life according to
his condition and ability; and the wife owes fidelity and obedience
to the husband; she is obliged to live with him and accompany him
to such place as he may deem proper and advantageous to make his
residence." So when any difficulty arises on account of failure
in any of these things, the injured person may go before the
justice of the peace in his "precinct and make complaint demanding
judicial action." Then the magistrate "shall forthwith dispatch
his compulsory writ directing the party defendant immediately to
appear to such complaint; both parties being present, it shall be
the duty of the justice to endeavor to effect a reconciliation,
the first of which endeavors he shall enter on record upon his
docket, affording the parties a reasonable opportunity; but if after
having so done, the person making the complaint does not agree, the
justice shall then proceed to try the matter in a summary manner,
provided always, that the reasons for disagreement are simple,
such as non-fulfillment" of the duties above set forth. In "case
of conviction he shall cause the delinquent to act as required by
the laws of the conjugal relation;" and when there is resistance
he "may order that such person be confined in the county jail,
there to remain until he comply with those duties by which both
the husband and wife were mutually bound." Furthermore, it is
especially provided, that when any persons are thus put in jail "for
an infraction of duty" and fail to "furnish their own provision,"
the sheriff may "dispose of their services for their maintenance."
Should, however, the trouble "arise from adultery, or cruelty,
or ill temper, rendering the life of the consort insecure, the
justice ... shall, after due investigation send the case up to the
district court which shall take cognizance of and try the same;"
and "whenever a temporary separation occurs between husband and
wife in order to bring suit before the district court, the justice
of the peace will provide how the family shall be cared for, and
will immediately report to the probate judge of the county, so that
the latter may provide for the care of the minors, their support
and education, as also for the wife, in case she be the injured
party, during the controversy or until otherwise provided for by the
district court."[260] It is not, perhaps, surprising that this whole
subject is omitted from the compilation of 1897.
[259] _Acts of N. M._ (1901), 116 ff. For the earlier laws see
_Acts of the Ass. of N. M._ (1886-87), 68; _Comp. Laws_ (1897),
407. In case of permanent separation, without a dissolution of
marriage, either spouse may institute a suit for division of
property or disposal of the children; or the wife may bring suit
for alimony alone: _ibid._, 116.
[260] _Compiled Laws of N. M._ (1885), 514, 516.
By the code of Porto Rico the district court has jurisdiction.
Partial divorce is not recognized; but marriage may be dissolved, on
the petition of the aggrieved, for (1) adultery; (2) conviction of
felony, which may involve the loss of civil rights; (3) "habitual
drunkenness or the continued and excessive use of opium, morphine,
or any other narcotic;" (4) cruel treatment or gross injury; (5)
abandonment for one year; (6) "absolute, perpetual, and incurable
impotence" occurring after marriage; (7) the "attempt of the husband
or wife to corrupt their sons or to prostitute their daughters," or
connivance of either in the same; (8) the proposal of the husband to
prostitute the wife.[261]
[261] _Rev. Stat. and Codes of Porto Rico_ (1902), 813-17.
The experience of South Carolina is peculiar. After abstaining from
any legislation on the subject for two hundred years, that state
indulged in a conservative divorce statute in 1872. Hitherto the
courts were competent only to grant separation from bed and board
under the common law. By the act in question they were empowered
to pronounce decrees of absolute divorce in favor of either spouse
(1) for adultery and (2) for abandonment[262] during the space of
two years.[263] But this law was of short duration, being repealed
in 1878.[264] South Carolina legal sentiment on the divorce problem
is fairly revealed in connection with two important decisions
during the century. Commenting on the case of Vaigneur _et al._
_v._ Kirk, decided in 1808, Editor Desaussure contrasts the laxity
of the marriage laws with the stringency of the rule relating to
divorce. "The subject of marriage, and consequently the legitimacy
of children, is on the same loose footing in this state that it
was in England before" 1753[265] and as "it now is in Scotland. We
have no statute regulating marriages, or providing any form for the
celebration of them, or for recording them. And they are usually
celebrated in any form the parties please, before a clergyman or
magistrate." This "remarkable facility of contracting matrimony ...
is strongly contrasted with the impracticability of dissolving the
contract. No divorce has ever taken place within the state. The
legislature has uniformly refused to grant divorces, on the ground
that it was improper for the legislative body to exercise judicial
powers. And it has as steadily refused to enact any law to authorize
the courts of justice to grant divorces _a vinculo matrimonii_, on
the broad principle that it was a wise policy to shut the door to
domestic discord, and to gross immorality in the community."[266]
[262] "Provided, that, when the suit is instituted by the party
deserting, it appears that the desertion was caused by the
extreme cruelty of the other party, or that the desertion of the
wife was caused by the gross or wanton and cruel neglect of the
husband to provide suitable maintenance for her, he being of
sufficient ability to do so" (p. 30).
[263] Act of Jan. 31: _Acts and Joint Res._ (1872), 30 ff.
[264] Repealed by act of Dec. 20: _Acts and Joint Res._ (1878),
719.
[265] Previous to 26 Geo. II., chap. 33.
[266] H. W. DESAUSSURE, in 2 _S. C. Equity Reports_, 644 (revised
edition).
With this view harmonizes the opinion of Justice Pope in McCreery
_v._ Davis rendered in 1894. While separation from bed and
board--the only form of divorce obtainable in the state--"is a
judicial barrier to any attempt to exercise the rights or enforce
the duties of the parties affected by the judgment, yet the courts
are only too willing to have the parties restored to their original
_status quo_, upon good cause shown. While the remedy is a hard
one, and to a certain extent interferes with the operation of
the laws of nature, still woman must be protected! After all, an
unbending adhesion to the laws of right living has a healthy effect
upon the lives of others. If self-denial is thus necessitated, it
should not be forgotten that many natures are perfected through its
beneficent influence. True philosophy would extract good from every
condition.... By art. IV, sec. 15, of our constitution, the courts
of common pleas have exclusive jurisdiction in all cases of divorce,
and by art. XIV, sec. 5, divorces from the bonds of matrimony
shall not be allowed but by the judgment of a court as shall be
prescribed by law. Thus the general assembly is denied the power
to grant divorces directly, but is permitted to clothe the courts
of common pleas with that power. This last they have refused to do
by repealing the act of 1872;" and thus "we have the common law
restored to us on this subject."[267]
[267] Opinion of Justice Pope in McCreery _v._ Davis, 44 _S. C.
Reports_, 195-227 (1894).
Finally it may be noted that the supreme court of the District of
Columbia has exclusive jurisdiction in all applications for either
full or partial separation. Until recently a divorce from the bond
of wedlock might be granted (1) when either spouse had a husband or
wife living at the time of the contract, "unless the former marriage
had been lawfully dissolved and no restraint imposed" on further
marriage; (2) when the marriage was contracted during the lunacy
of either party; (3) when either was matrimonially incapacitated at
the time of the marriage; or (4) has since committed adultery; (5)
for habitual drunkenness for a period of three years; (6) for cruel
treatment endangering the life or health of the complainant; or (7)
for wilful desertion and abandonment for two years. A divorce from
bed and board was allowed (1) for cruel treatment endangering life
or health; or (2) "reasonable apprehension, to the satisfaction of
the court, of bodily harm."[268] A new and drastic law was passed in
1901. Hereafter absolute divorce will be granted only for adultery,
the guilty person not being allowed to remarry. Legal separation
from bed and board may be obtained for (1) drunkenness, (2) cruelty,
or (3) desertion. Only residents may bring suit for divorce;
and unless the applicant has for three years been a _bona fide_
resident, no decree will be granted for a cause occurring outside
the District before such residence began.[269]
[268] _Comp. Stat. of D. C._ (1894), 275, 276.
[269] MOORE, _Code of D. C._ (1902), 199, 200.
_c_) _Remarriage, residence, notice, and miscellaneous
provisions._--Throughout the century, and especially during the
first half, many of the southern states have been conservative, even
severe, regarding the liberty of the person offending to remarry
after full separation; but in very few cases is any restraint put
upon the further marriage of the person in whose favor the decree
is granted. The divorce acts passed by the assembly of Virginia
sometimes expressly forbid the guilty person to contract further
wedlock during the lifetime of the former spouse.[270] The law of
1848, when the marriage bond is dissolved on account of infidelity,
authorizes the court in its discretion to allow both parties to
remarry or only the injured person, as may seem just.[271] Such
substantially is the present law. "In granting a divorce for
adultery, the court may decree that the guilty party shall not marry
again; in which case the bond of matrimony shall be deemed not to
be dissolved as to any future marriage of such party, or in any
prosecution on account thereof. But for good cause shown, so much of
any decree as prohibits the guilty party from marrying again, may
be revoked and annulled at any time after such decree, by the same
court by which it was pronounced."[272] No restraint appears to be
put upon the immediate remarriage of persons separated for other
causes.
[270] See the cases already cited, _Acts_ (1826-27), 126.
[271] Act of March 18, 1848: _Acts of the Assembly_ (1847-48),
165, 166.
[272] _Code of Va._ (1887), 562.
The early statutes and the decrees for full divorce in individual
cases passed by the assembly of Maryland, by their silence on the
subject, appear to contemplate the further marriage of the persons
at pleasure. The law of 1872, however, is somewhat conservative.
"In all cases where a divorce _a vinculo matrimonii_ is decreed
for adultery or abandonment, the court may, in its discretion,"
forbid the guilty party to "contract marriage with any other person
during the lifetime" of the injured spouse, the bond of marriage not
being dissolved, but remaining in full force with respect to such
offender.[273] This restriction is now omitted from the code.[274]
In the District of Columbia the guilty person may not remarry except
with the former spouse.[275]
[273] Act of April 1: _Laws_ (1872), chap. 272, p. 445.
[274] The _Code of Md._ (1888) seems to be entirely silent as to
remarriage.
[275] _Comp. Stat. of D. C._ (1894), 275 ff., allowing entire
freedom; superseded by the act of 1901: MOORE, _Code_ (1902),
199, 200.
Formerly the law of North Carolina was stringent in this regard. The
act of 1814 permits the "complainant or innocent person" to "marry
again as if he or she had never been married;" leaving us to infer,
perhaps, that the defendant was not allowed such liberty.[276] In
1828 it is squarely enacted that "no defendant or party offending,
who shall be divorced from the bonds of matrimony ... shall ever
be permitted to marry again."[277] This rule stands in sharp
contrast with the policy of the later law. First the prohibition was
restricted to the lifetime of the aggrieved.[278] Next, in 1869,
the term was reduced to two years.[279] From 1871 to 1895 no check
whatever was put upon the further marriage of either spouse, whether
guilty or innocent;[280] but now in case of wilful desertion the
guilty defendant may not rewed in five years, or during the lifetime
of the plaintiff, if divorced for the eighth cause above considered.
[276] _Laws_ (1814), chap. 5; and HAYWOOD, _Manual_ (1819),
176. The same provision appears in _Laws of the State of N. C._
(1821), II, 1294.
[277] _Acts_ (1827-28), 20.
[278] _Rev. Code_ (1855), chap. 39, sec. 17, p. 254.
[279] Act of April 7, 1869: _Pub. Laws_, 323.
[280] All restriction is removed by _Laws_ (1870-71), chap. 193,
sec. 46, p. 343; also in _Code of N. C._ (1883), I, 518.
The Georgia statute approved in 1806 allows remarriage when a
contract is nullified under the principles of ecclesiastical law;
but denies the privilege to the person whose "improper or criminal
conduct" is the cause of an absolute divorce, so long as the
innocent consort lives.[281] This rule long remained in force;[282]
but under the existing code a rather peculiar procedure is adopted.
The jury according to whose final verdict a decree of absolute
divorce is granted determines the rights and disabilities of the
parties, including the question of remarriage, subject to the
revision of the court; but provision is made for subsequent removal
of the disabilities thus imposed. On proper application, notice
of which must be published in a newspaper for sixty days, with
twenty days' personal notification to the other divorced person if
still living and residing in the county, the question of granting
relief is submitted to a new jury, "who shall hear all the facts,
and if, in their judgment, the interest of the applicant or of
society demands the removal of such disabilities," shall so find;
and the person relieved shall then be allowed to form a second
marriage as if no former contract had ever existed. At the trial
the divorced person or any citizen of the county may resist the
application; but should no person appear for this purpose, then "the
solicitor-general shall represent the state, with full power to
resist the same, as in ordinary divorce cases."[283]
[281] _Compilation of Laws of Ga._ (1812), 313.
[282] For instance, see HOTCHKISS, _Codification_ (1845), 331;
COBB, _Analysis_ (1846), 294 ff.; COBB, _Digest_ (1851), 226 ff.
[283] _Acts_ (1872), 14; _ibid._ (1879), 51; also in _Code of
Ga._ (1896), II, 29, 30. A "verdict of divorce in 1866 will not
authorize the guilty party to marry again without proof of a
decree of court authorizing to marry."--62 _Ga._, 408.
By the Tennessee statute of 1799 no restraint is put upon immediate
remarriage in any case of divorce, except where the cause is
infidelity, when the guilty defendant may not marry the person
with whom the crime was committed during the lifetime of the
former spouse.[284] This provision still appears unchanged in the
code.[285] The offender is dealt with in precisely the same way
by the Kentucky law of 1809; and by it also the injured spouse is
permitted to marry again only after two years.[286] In 1820 the
innocent person is relieved from all restraint;[287] both parties
are treated as "single" persons in 1843;[288] and likewise by
the present statute, in all cases of divorce, no matter what the
cause, guilty and innocent alike are absolutely free to form new
marriages whenever it shall please them so to do.[289] The same
freedom exists in Arizona, New Mexico, Arkansas, Indian Territory,
Texas, West Virginia, and Missouri; although in the last-named
state until 1885 the guilty defendant was not permitted to remarry
for five years, "unless otherwise expressed in the decree of the
court."[290] Since 1857, in Mississippi, by a more stringent clause
"the decree may provide, in the discretion of the court, that a
party against whom a divorce is granted because of adultery shall
not be at liberty to marry again;" but the freedom of the successful
plaintiff is unrestrained.[291] In 1824 the Alabama assembly in all
cases forbade the guilty person to remarry; but this prohibition was
removed by an act of February, 1870, which, however, lasted only
until April, 1873, when it in turn was repealed. By the existing
code the chancellor in making his decree may, according to the
evidence and nature of the case, direct whether the party, against
whom the decree is rendered, shall be permitted to marry again;
and in decrees now or hereafter rendered, when no order is made
allowing or disallowing the divorced person to remarry, he may on
petition and proper proof allow or disallow the petitioner to form a
new marriage.[292] It is constituted bigamy in Oklahoma for either
divorced person to remarry within six months after the divorce, or
until thirty days after final judgment, if appeal be taken. Every
decree of divorce shall recite that it "does not become absolute and
take effect until the expiration of six months" from the day when it
was rendered.[293] According to the Louisiana law, since 1808--at
least until 1888--the wife cannot remarry until ten months after
dissolution of the contract, whether by death, divorce, or decree
of nullity.[294] In case of divorce for infidelity the offender may
not marry his or her accomplice; and this last provision has been in
force since 1827.[295] Under the same conditions as in Louisiana,
the woman in Porto Rico may not marry during a period of three
hundred and one days after dissolution of the marriage, or until
a child is born if she be pregnant at the time of the husband's
death.[296] By the criminal code of Florida, apparently, the guilty
party may not rewed.[297]
[284] Act of Oct. 26, 1799: SCOTT, _Laws of Tenn._ (1821), I, 647.
[285] _Code of Tenn._ (1884), 617; SHANNON, _Code_ (1896), 1050.
[286] LITTELL, _Stat. Laws of Ky._ (1814), IV, 20. This
restriction upon the defendant appears also in the act of 1812:
_ibid._, IV, 407-10.
[287] _Acts_ (1819-20), 896.
[288] Act of March 2, 1843: _Acts_ (1842-43), 29, 30.
[289] _Kentucky Stat._ (1899), 827.
[290] _Rev. Stat. of Ariz._ (1887), 374; _Comp. Laws of N. M._
(1897), 407 ff.; _Digest of Ark._ (1894), 680 ff.; _Ann. Stat.
of Ind. Ter._ (1899), 324-27; _Laws of the Rep. of Tex._ (act of
Jan. 6, 1841), V, 20; also _Rev. Civil Stat. of Tex._ (1888), I,
887; _Ann. Civil Stat._ (1897), I, 1095-1100; _Code of W. Va._
(1899), 660 ff.; also KELLY, _Rev. Stat. of W. Va._ (1878), I,
495. The five-year limit for Missouri is fixed by the act of Jan.
24, 1835: _Rev. Stat._ (1835), 226; and is retained in _Rev.
Stat._ (1845), 428; and _ibid._ (1879), I, 362; but it is struck
out by _Laws_ (1885), 159; and there is no restriction in _Rev.
Stat._ (1899), I, 741-44. But by the act of Jan. 31, 1833, it was
provided that "when one of the parties ... shall be divorced, it
shall ... be lawful for the other party to marry again, after
two years shall have expired."--_Laws of a Pub. and Gen. Nature_
(1842), II, 361.
[291] _Ann. Code of Miss._ (1892), 420; _Rev. Code_ (1857), 334.
[292] _Cf._ _Acts_ (1824), 61, 62; _ibid._ (1869-70), 76, 77;
_ibid._ (1872-73), 122; _Code of Ala._ (1897), 492, 493.
[293] _Stat. of Okla._ (1893), 876, 877; WILSON, _Statutes_
(1903), II, 1122.
[294] _Digest of Civil Laws_ (1808), 28; _Rev. Civil Code_
(1888), 68.
[295] _Rev. Laws_ (1897), 306; _ibid._ (1870), 21; _Acts_ (1827),
132, 134; Acts (1855), 376, 377.
[296] _Rev. Stat. and Codes of Porto Rico_ (1902), 860.
[297] _Rev. Stat. of Fla._ (1892), 820.
In all of the southern and southwestern states, except Louisiana
and, of course, South Carolina, a short term of residence is
required to qualify the plaintiff to bring suit. Virginia began with
a fairly cautious act in 1848. A definite term is not fixed; but a
petition for divorce must be brought in the court of the county,
city, or town where one of the parties lives, and when the plaintiff
has left the county or other place where the married persons dwelt
together, the "suit shall be instituted and heard in the court"
held for that same county, if the defendant lives there still. The
benefits of the act do not extend to any save _bona fide_ citizens
at the time of petition; nor to any case where the parties have
never lived together as citizens and as married persons in the
commonwealth; nor to any cause of adultery which shall have occurred
in any other state or country, unless the parties at the time of
such cause or before it took place were citizens of the state and
lived there together as husband and wife.[298] By the present
law no suit can be sustained unless one of the persons has been
domiciled in the state for at least one year before; and it must
be brought either in the county or corporation where the parties
last cohabited, or, at the option of the plaintiff, in that of the
defendant, if still a resident of the state; otherwise in the place
where the plaintiff dwells.[299]
[298] Act of March 18: _Acts of the Assembly_ (1847-48), 165, 166.
[299] _Code of Va._ (1887), 561.
The same rule as that of the parent state has existed in West
Virginia since 1882, when a year's residence of one of the persons
instead of mere residence at the time of the filing of the suit was
introduced.[300] In Georgia twelve months in the state and six in
the county for a divorce of either kind are required.[301] By the
laws of Kentucky and Arkansas the term of previous residence for the
plaintiff is also one year; and if the cause for divorce arose or
existed without the state, he must have been a resident of the state
at the time, unless it was also a ground of divorce where it existed
or arose. In each of these states "an action for divorce must be
brought within five years next after the doing of the act complained
of."[302] In Alabama, when the defendant lives outside the state,
the plaintiff must have been a _bona fide_ resident for one year
before bringing the action; or for three years when abandonment
is the cause alleged.[303] Since 1822 in Mississippi the term of
residence in the state for the applicant has been one year;[304]
although, in 1857, a divorce shall be denied when the parties have
never lived together as husband and wife in the state; as also for a
cause occurring elsewhere, unless prior to its occurrence they have
so dwelt together in the commonwealth. This last restriction does
not apply to a _bona fide_ citizen who marries abroad and does not
discover the cause of divorce until after return to the state; but
in case of desertion the term of _bona fide_ residence must be three
years.[305] An important change was introduced in 1863. It is then
sufficient to be a citizen of the state or a resident of it for one
year; but the applicant must make affidavit that he has not taken up
residence to obtain a divorce.[306] By the existing code the courts
of chancery may exercise jurisdiction only (1) when both persons
are domiciled in the state when suit is commenced; or (2) when the
complainant is so domiciled and the defendant is personally served
with process in the state; or (3) when one of the consorts is thus
domiciled and one or the other of them an actual resident for one
year before action began.[307]
[300] _Code of W. Va._ (1900), 662; _Acts_ (1882), chap. 60.
[301] Act of Oct. 20, 1891: _Acts_ (1890-91), 235.
[302] _Ky. Stat._ (1894), 769, 770; _Digest of Ark._ (1894), 681.
_Cf._ WRIGHT, _Report_, 80.
[303] _Code of Ala._ (1887), 525; _ibid._ (1897), 493.
[304] Act of June 15, 1822: _Code of Miss._ (1848), 495.
[305] _Rev. Code_ (1857), 335.
[306] Act of Dec. 1, 1863: _Laws_ (1862-63), 125, 126.
[307] _Ann. Code of Miss._ (1892), 421.
The time of residence for the petitioner is three years in the
District of Columbia; and two years in Florida.[308] It is also two
years in Tennessee, although the acts complained of were committed
out of the state, or the petitioner lived out of the state at the
time, and no matter where the defendant resides. A decree of divorce
in a foreign state granted to a citizen of Tennessee who has merely
temporarily transferred his residence there is void and will not
be recognized.[309] In Maryland, since 1842, a divorce will not be
granted when the cause occurs outside of the state, unless either
the plaintiff or the defendant has resided in the state for the two
preceding years.[310] By the North Carolina act of 1814 a stringent
rule was adopted, only a citizen resident in the state for three
years being allowed to sue.[311] At present the plaintiff must show
that the facts constituting the ground for divorce have existed
for at least six months prior to filing the complaint, and that
he has been a resident of the state for the preceding two years;
and if the wife be plaintiff, she may set forth "that the husband
is removing or about to remove his property and effects from the
state, whereby she may be disappointed in her alimony."[312] But
in case of desertion the term of previous residence is five years.
The period of previous residence for the plaintiff is six months in
the state and county in Texas;[313] one year within the territory
in New Mexico, Arizona, and Oklahoma;[314] while in Missouri it is
one year, unless the offense or injury complained of was committed
within the state, or when one or both of the persons resided there.
In all cases when the proceedings are _ex parte_, the court "shall,
before granting the divorce, require proof of the good conduct of
the petitioner and be satisfied that he or she is an innocent or
injured" person.[315] In Arkansas and Indian Territory the plaintiff
must "allege and prove" (1) "residence in the state for one year
next before the commencement of the action:" (2) that the cause of
divorce occurred or existed in the state, or, if out of the state,
either that it was a legal cause there or that the applicant's
residence was then in the state; (3) that the cause of divorce
occurred or existed within five years before the suit began.[316]
One year's residence is likewise required in Porto Rico, unless the
act complained of was committed in the island or while one of the
consorts resided there.[317]
[308] _Rev. Stat. of Fla._ (1892), 504. But by the act of May 19,
1899, "when the defendant has been guilty of adultery in this
state," then any citizen of the state, being the aggrieved, may
get a divorce at any time, the two years' previous residence not
being required: _Acts and Res._ (1899), 117. _Cf._ _Comp. Stat.
of D. C._ (1894), 276, requiring two years; superseded by the act
of 1901: MOORE, _Code_ (1902), 200.
[309] _Code of Tenn._ (1884), 612; SHANNON, _Code_ (1896), 1044
n. 2. Earlier the condition was citizenship and residence for one
year: Act of Oct. 26, 1799: SCOTT, _Laws_ (1821), I, 647; same in
1835, except the petitioner may have been absent on business or
for health: CARUTHERS AND NICHOLSON, _Compilation_ (1836), 260;
also see 5 _Yerg._, 203. A male citizen bringing suit for divorce
must give bond and security for costs: _Acts_ (1891), chap. 221,
p. 433. On divorce in a foreign state see 3 _Lea_, 260.
[310] _Code of Md._ (1888), I, 144; _cf._ _Laws_ (1841-42), chap.
262; _Laws_ (1843), chap. 287; _Laws_ (1886), chap. 10.
[311] _Laws_ (1814), chap. 5; HAYWOOD, _Manual_ (1819), 177;
_Laws_ (1821), II, 1294, 1295.
[312] _Code of N. C._ (1883), I, 575. See WRIGHT, _Report_, 83;
_Pub. Laws_ (1903), 846.
[313] The plaintiff must also be a _bona fide_ resident of the
state: _Rev. Civil Stat. of Tex._ (1888), I, 886; _Ann. Civil
Stat._ (1897), I, 1097.
[314] By act of Congress, May 25, 1896: _Stat. at Large_, XXIX,
136, not less than one year's previous residence in any of the
territories is required to entitle the plaintiff to bring suit
for divorce. See _Rev. Stat. of Ariz._ (1901), 813; _Acts of N.
M._ (1901), 117; WILSON, _Stat. of Okla._ (1903), II, 1119.
[315] _Rev. Stat. of Mo._ (1889), I, 1030; _ibid._ (1899), I,
742, 743. This provision for residence appears in the statutes
from 1835 onward: _Rev. Stat._ (1835), 225; _ibid._ (1845), 427;
_ibid._ (1879), 361; and the period is one year by the act of May
13, 1807; _Laws of Pub. and Gen. Nature_ (1842), I, 92.
[316] _Digest of Ark._ (1894), 681; _Ann. Stat. of Ind. Ter._
(1899), 325. The statute does not contemplate "constructive"
residence; and applies to limited as well as absolute divorce:
see Wood _v._ Wood, 54 _Ark._, 172; 15 _S. W._, 459.
[317] _Rev. Stat. and Codes of Porto Rico_ (1902), 814.
A few of the states under consideration have adopted special
provisions governing notice to the defendant. Thus in Louisiana,
"when the defendant is absent, or incapable of acting for any
cause, an attorney shall be appointed to represent him, against
whom, contradictorily, the suit shall be prosecuted."[318] In North
Carolina, if personal service cannot be made, the court may order
service by publication, as in any other actions.[319] By the law
of Tennessee, process is authorized as in chancery cases. If the
wife is the petitioner, the suit may be heard and decided without
service, either personal or by publication, if the bill was filed
and the subpoena placed in the hands of the sheriff of the county
in which the suit is instituted three months before the time when
the subpœna is returnable; but the officer having the subpœna shall
execute it if he can.[320] In New Mexico service of process can be
made by publication after obtaining an order from a judge of the
supreme court, based on an affidavit showing the present residence
of the defendant, if known, or last known place of residence, and
efforts made to ascertain the present residence. The order for
publication shall direct that a copy of the summons be mailed to
the present or last known residence of the defendant, and may
direct such other means of bringing the action to the knowledge of
the defendant as the judge shall deem proper.[321] Until recently
Florida had a still different law. If the defendant is absent from
the state, so that ordinary process cannot be served, or, if served,
he cannot be compelled to appear and answer or plead, the court may
order a hearing on the bill, a copy of such order to be published in
some public newspaper of the state, for the space of three months at
least, or for a longer time, if the court shall so direct, or a copy
of the bill and order for the hearing, certified by the clerk of the
court, shall be actually served upon or delivered to the defendant
at least three months before the day fixed for the hearing, or for
a longer time, as the court may determine. The present statute,
however, directs simply that process be served as in other chancery
suits.[322] This is the rule also in Virginia, West Virginia,
Maryland, Mississippi, Arkansas, and Indian Territory; likewise in
Georgia when the defendant is a non-resident; and in Alabama, where,
if the defendant is a non-resident, publication is essential.[323]
In the District of Columbia process is according to the usual course
of equity and the rules adopted by the court. Missouri requires
process as in other civil actions; and this is the law in the
remaining states and territories of the group.[324]
[318] _Rev. Civil Code of La._ (1888), 69; _ibid._ (1870), 19.
[319] _Code of N. C._ (1883), I, 81, 82; WRIGHT, _Report_, 88.
[320] _Code of Tenn._ (1884), 613; WRIGHT, _Report_, 88.
[321] _Comp. Laws_ (1897), 408.
[322] Compare _Rev. Stat. of Fla._ (1892), 505; WRIGHT, _Report_,
87.
[323] _Code of Va._ (1887), 561; _Code of W. Va._ (1900), 662;
_Code of Md._ (1888), 142; _Ann. Code of Miss._ (1892), 421;
_Code of Ga._ (1882), 395; _ibid._ (1896), II, 227; _Digest of
Ark._ (1894), 681; _Ann. Stat. of Ind. Ter._ (1899), 325. See
WRIGHT, _Report_, 85-89.
By the Alabama Act of Dec. 14, 1898, in case of a decree _pro
confesso_ taken in the chancery court, the evidence having been
taken and the cause being ready for decree, and no defense being
interposed, if the complainant or his solicitor shall file a
written request to the register or the clerk of the court to
deliver the papers in the suit to the chancellor or judge, at the
same time submitting his note of testimony in the case, then the
chancellor shall render a decree in term time or in vacation:
_Gen. Laws of Ala._ (1898-99), 118.
[324] _Rev. Stat. of Mo._ (1899), I, 742; _Rev. Stat. of Ariz._
(1887), 373 ff.; _ibid._ (1901), 439; _Rev. Civil Stat. of Tex._
(1888), I, 885 ff.; _Stat. of Okla._ (1893), 875; WILSON, _Stat.
of Okla._ (1903), II, 1120; MOORE, _Code of D. C._ (1901), 21.
The miscellaneous provisions are much the same as in the other parts
of the United States. Usually, in case of divorce, the legitimacy of
the children is expressly acknowledged.[325] Sometimes provision
is made for trial by jury, as in Georgia, Texas, and North
Carolina;[326] or it is carefully forbidden, as in Kentucky;[327]
and the law may permit the woman to resume her maiden name, as in
Arkansas, Kentucky, Indian Territory, Oklahoma, Mississippi, and the
District of Columbia.[328] Furthermore, in the District of Columbia,
a disinterested attorney must be assigned to resist the decree in
uncontested cases, or in any suit when the court sees fit;[329] and
similar laws exist in Louisiana and Kentucky. Arbitration in place
of judicial divorce is prohibited in Louisiana;[330] the married
persons are allowed to be witnesses in Texas, Oklahoma, North
Carolina,[331] and formerly in Florida; and occasionally provision
is made for the annulment of the decree by further process before
the courts.[332]
[325] For example, by _Code of Va._ (1887), 620; _Code of W. Va._
(1891), 666; _ibid._ (1900), 713; _Code of N. C._ (1883), I,
518; _Code of Ga._ (1896), II, 230; _Rev. Stat. of Fla._ (1892),
505; _Rev. Stat. of Ariz._ (1901), 814; _Rev. Civil Stat. of
Tex._ (1888), I, 887; _Ann. Civil Stat. of Tex._ (1897), I, 1099;
_Comp. Stat. of D. C._ (1894), 276, 277.
[326] _Code of Ga._ (1882), 396; _Rev. Civil Stat. of Tex._
(1888), I, 886; _Ann. Civil Stat. of Tex._ (1897), I, 1097; _Code
of N. C._ (1883), I, 516.
[327] _Ky. Stat._ (1894), 767.
[328] _Digest of Ark._ (1894), 683; _Ann. Stat. of Ind. Ter._
(1899), 327; _Stat. of Ky._ (1894), 772; _Rev. Stat. of Mo._
(1899), I, 740; _Stat. of Okla._ (1893), 876; WILSON, _Stat. of
Okla._ (1903), II, 1121; _Comp. Stat. of D. C._ (1894), 277;
MOORE, _Code of D. C._ (1902), 200.
[329] MOORE, _Code of D. C._ (1902), 201.
[330] _Rev. Civil Code of La._ (1888), 69.
[331] _Laws of Tex._ (1897), 49; _Code of N. C._ (1883), I, 516;
_Stat. of Okla._ (1893), 877, 878; WILSON, _Stat. of Okla._
(1903), II, 1123: _Acts and Res. of Fla._ (1885), 24.
[332] As by _Kentucky Stat._ (1894), 770, 771; _Digest of Ark._
(1894), 683; _Ann. Stat. of Ind. Ter._ (1899), 327; _Code of Va._
(1887), 562, 563; _Code of W. Va._ (1891), 614; _ibid._ (1900),
663.
_d_) _Alimony, property, and custody of children._--The statutes of
these states contain the usual provisions for the protection and
support of the wife and children during the suit for divorce; and
sometimes the husband is required to furnish money to defray the
wife's expenses in the same. The Virginia law authorizes the court
in term or the judge in vacation to make an order compelling the
"man to pay any sums necessary for the maintenance of the woman and
to enable her to carry on the suit, or to prevent him from imposing
any restraint on her personal liberty, or to provide for the custody
and maintenance of the minor children" during the litigation. In
the same way steps may be taken to preserve the estate of the
husband, "so that it may be forthcoming to meet any decree," even
compelling him to give security to abide by the decision.[333] North
Carolina also grants the wife alimony _pendente lite_; but an order
allowing it shall not be made "unless the husband shall have had
five days' notice;" and in all cases of application for alimony it
is admissible for him to be heard by affidavit in answer to the
allegations made by the complainant. If he has abandoned his wife
and left the state, or is in parts unknown, or is about to remove
or dispose of his property for the purpose of defeating her claims,
a notice is not required.[334] Arkansas and Indian Territory allow
similar support during the suit, including attorney's fees.[335] By
the Louisiana statute, "if the wife who sues for a separation" from
bed and board, or for a divorce, "has left or declared her intention
to leave the dwelling of her husband, the judge shall assign the
house wherein she shall be obliged to dwell until the determination
of the suit." She "shall be subject to prove her said residence as
often as she may be required to do so, and in case she fails so to
do, every proceeding on the separation shall be suspended." She is
entitled to alimony _pendente lite_, if she constantly resides in
the house assigned; and during the action, for the preservation
of her rights, she may require an inventory and appraisement to
be made of the property in the husband's possession and demand an
injunction restraining him from disposing of any part thereof. After
the commencement of the suit the husband may not contract a debt
on account of the community, nor sell the immovables belonging to
the same; such alienation being void, if made "with the fraudulent
view of injuring the rights of the wife." Custody of the children of
the marriage, "whose provisional keeping is claimed by both husband
and wife," belongs to the husband, whether plaintiff or defendant,
"unless there shall be strong reasons to deprive him of it;" but
when a separation from bed and board has been decreed, the "children
shall be placed under the care of the party who shall have obtained
the separation, unless the judge shall, for the greater advantage
of the children and with the advice of the family meeting, order
that some or all" of them be intrusted to the other spouse. In all
cases of full divorce "the minor children shall be placed under the
tutorship of the party who shall have obtained" the decree.[336]
[333] _Code of Va._ (1887), 562; _cf._ _Code of W. Va._ (1900),
662.
[334] _Code of N. C._ (1883), I, 517.
[335] _Digest of Ark._ (1894), 681; _Ann. Stat. of Ind. Ter._
(1899), 326.
[336] Rev. _Civil Stat. of La._ (1888), 70-72; _ibid._ (1870),
19-21; _ibid._ (1897), 306.
Permanent alimony and the custody of the children after dissolution
of marriage are generally provided for. Sometimes the wife is
granted separate alimony without a decree of divorce, as in
Virginia, Florida, Georgia, and Oklahoma.[337] From an early period
the North Carolina statutes have been conspicuous for the relief
granted to the wife after divorce, or, under certain circumstances,
without formal separation. Thus by the act of 1814 the court may
grant a woman having a limited divorce for cruelty or abandonment
such alimony as the husband's means will admit, not exceeding
either one-third of his real or personal estate or a like share of
the annual profits of his estate, occupation, or labor.[338] The
deserted wife gains still further protection in 1816. "Whereas,"
declares an act of that year, "cases of great hardship often occur,
the husband being at liberty to return and squander away the
estate of the wife, subsequently obtained;" to remedy the evil it
is therefore enacted that in future the decree of separation from
bed and board shall have the effect of securing to the wife "any
property which she may subsequently obtain, either by her own labor,
gift, devise, or operation of law, unless the court shall in their
judgment otherwise order."[339] Furthermore, in 1828-29 the courts
were authorized to grant the wife separate alimony without divorce
"whenever a man shall become an habitual drunkard or spendthrift,
wasting his substance to the impoverishment of his family."[340] The
present law is conceived in the spirit of these early enactments.
In case of separation from bed and board, the amount of alimony is
the same as in 1814. Separate maintenance without a divorce is still
allowed. "When any husband shall separate himself from his wife
and fail to provide her with the necessary subsistence according
to his means and condition in life, or if he shall be a drunkard
or spendthrift, the wife may apply for a special proceeding to the
judge of the superior court for the county in which he resides, to
have a reasonable subsistence secured to her and to the children of
the marriage." Finally it may be noted that alimony may be decreed
to the husband as well as the wife in Virginia and West Virginia.
[337] _Code of Ga._ (1896), II, 236; _Rev. Stat. of Fla._ (1892),
505; _Stat. of Okla._ (1893), 877; WILSON, _Stat. of Okla._
(1903), II, 1123; _Code of Va._ (1887), 562. _Cf._, for Virginia,
4 H. AND M., 507; 4 RAND., 662: 1 _Rob._, 608; 1 MINOR'S _Inst._,
282.
[338] _Laws of N. C._ (1814), chap. 5; HAYWOOD, MANUAL (1819),
174 ff. It may be noted that the act of 1814 lays on the party
"cast" in each divorce suit a tax of ten pounds payable to the
state: _ibid._, 177.
[339] _Acts_ (1816), chap. 33: also in HAYWOOD, _Manual_, 177,
178.
[340] _Acts_ (1828-29), 25.
Measures are taken in nearly every state for the division or
other disposal of property after separation or divorce. The North
Carolina law is very elaborate. "Every woman who shall be living
separate from her husband, either upon a judgment of divorce ...
or under a deed of separation, executed by said husband and wife,
and registered in the county in which she resides, or whose husband
shall have been declared an idiot or a lunatic, shall be deemed and
held ... a free trader, and shall have power to convey her personal
estate and her real estate without the assent of the husband."
So also "every woman whose husband shall abandon her, or shall
maliciously turn her out of doors, shall be deemed a free trader, so
far as to be competent to contract and be contracted with, and to
bind her separate property, but the liability of the husband for her
reasonable support shall not thereby be impaired, and she shall have
power to convey" her real and personal estate without her husband's
assent. When a marriage is dissolved _a vinculo_, each of the
parties loses all right to any estate by courtesy or dower, and all
right to a year's provision or a distributive share in the personal
property of the other, or to administer on the other's estate, and
all rights whatsoever in the other's estate gained by settlement in
consideration of the marriage. But if a "married woman shall elope
with an adulterer, or shall wilfully and without just cause abandon
her husband and refuse to live with him, and shall not be living
with" him at his death; or if a limited divorce be granted on the
husband's petition, "she shall thereby lose all right to dower in
the lands and tenements of her husband, and also all right to a
year's provision." In such cases the husband may convey his real
estate as if he were unmarried, and the wife is thereafter barred
of all claims to dower. When the husband is guilty of a similar
offense, and his conduct is not condoned by the wife, or in case a
partial divorce has been granted on her application, he shall suffer
the like penalties.[341]
[341] _Code of N. C._ (1883), I, 696, 700; and _Laws_ (1893),
chap. 153, pp. 114-16, amending _Laws_ (1871-72), chap. 193,
sec. 44. By the law of the District of Columbia, "in case of
adultery of the wife, committed after ... divorce from bed and
board, the court may, on petition of the husband ... deprive
the wife of alimony from the date of her said criminal act, and
rescind her right of dower, as well as dispossess her ... of the
care, custody, and guardianship" of any child awarded to her by
the original judgment: _Comp. Stat._ (1894), 277. _Cf._ MOORE,
_Code_, 201.
In Missouri a divorce obtained by the wife is considered in law as
the death of the husband, and she is looked upon as his widow; but
when at fault she is barred of dower.[342] The guilty wife loses
her right of dower also in Tennessee; and there she cannot claim
permanent alimony. In the same state, when divorce is for the wife's
infidelity, and the woman afterwards cohabits with her paramour, she
is made "incapable of alienating, directly or indirectly, any of her
lands;" and after her death these are to be distributed according
to the rules of intestate inheritance.[343] Dower is barred by
grant of permanent alimony in Georgia;[344] and in Louisiana, in
case of separation from bed and board, the defendant loses "all the
advantages or donations" which the plaintiff "may have conferred
by the marriage contract or since," while the latter preserves all
those to which he or she would otherwise have been entitled; and
these dispositions are to take place even when the advantages and
donations were "reciprocally made."[345]
[342] _Rev. Civil Stat._ (1889), I, 1036. _Cf._ 61 _Mo._, 148;
and 57 _Mo._, 200; 3 _M. A._, 321.
[343] _Code of Tenn._ (1884), 616, 617. "If the wife, at the
time of a decree dissolving the marriage, be the owner of any
lands, or have in her possession goods or chattels or choses in
action acquired by her own industry or given to her by devise or
otherwise, or which may have come to her, or to which she may
be entitled by the decease of any relative intestate, she shall
have entire and exclusive dominion and control thereof, and may
sue for and recover the same in her own name subject, however,
to the rights of creditors who became such before the decree
was pronounced." When "a marriage is dissolved at the suit of
the husband, and the defendant is owner, in her own right, of
lands, his right to and interest therein and to the rents and
profits of the same, shall not be taken away or impaired by the
dissolution."--_Ibid._, 616, 617. _Cf._ SHANNON, _Code_ (1896),
1050.
[344] _Code of Ga._ (1896), II, 237; and 43 _Ga._, 295. But in
case of _bona-fide_ separation without divorce alimony may be
granted: _Code_ (1882), 401: _ibid._ (1896), II, 235.
[345] _Rev. Civil Code_ (1888), 72, 73; _ibid._ (1870), 20.
In general, on all these provisions, see also _Code of Md._
(1888), I, 143, 144; _Rev. Civil Stat. of Mo._ (1899), I, 742,
743; _Code of Ga._ (1896), II, 230 ff.; _Ann. Code of Miss._
(1892), 420; _Digest of Ark._ (1894), 681 ff.; _Ann. Stat. of
Ind. Ter._ (1899), 325-27; _Stat. of Okla._ (1893), 875 ff.;
WILSON, _Stat. of Okla._ (1903), II, 1119-28; _Kentucky Stat._
(1903), 846-51; _Rev. Stat. of Ariz._ (1887), 374, 375; _ibid._
(1901), 814, 815; _Rev. Stat. of Fla._ (1892), 505, 506; _Rev.
Civil Stat. of Tex._ (1888), I, 886-88.
Finally it must be noted as a matter of regret that in no instance
in these states has any provision been made for the registration of
divorces or the return and publication of divorce statistics.
III. THE MIDDLE AND WESTERN STATES[346]
[346] In this section are analyzed the statutes of the following
twenty-six states, districts, and territories: Alaska,
California, Colorado, Delaware, Hawaii, Idaho, Illinois, Indiana,
Iowa, Kansas, Michigan, Minnesota, Montana, Nebraska, Nevada, New
Jersey, New York, North Dakota, Ohio, Oregon, Pennsylvania, South
Dakota, Utah, Washington, Wisconsin, and Wyoming.
_a_) _Legislative divorce._--An examination of the session laws
reveals the fact that legislative divorce has at some time
existed in many western commonwealths. During the territorial
stage, in particular, and in some cases for a considerable period
thereafter, the assemblies at each meeting were called upon to
hear and determine petitions for dissolution of marriage which
ought to have been relegated to the courts. Such, for example, was
the practice in Michigan until 1837, when it was forbidden by the
first constitution of the state;[347] and in Illinois until a later
time. At the session of 1817-18 the assembly of Illinois Territory
granted relief to Elizabeth Spriggs because she had been "shamefully
abandoned" by her husband, who, it is alleged, is still guilty
of "shameful" misconduct, and because she must be "considerably
injured if she cannot obtain a divorce sooner than in the ordinary
way."[348] Other cases occurred from time to time;[349] and in
1831 the marital bonds of twenty couples were dissolved by one
act of a few lines.[350] Indiana appears to have been nearly as
indiscreet. For instance, in 1838 the marriage of John Duvall and
Nancy Duvall, _alias_ Nancy Stack, was declared null and void.[351]
Two years later occurred a divorce from the bond of wedlock, the
wife being permitted to resume her maiden name. Thereafter it
became the practice in this state for the assembly to grant persons
leave to file bills in the courts in cases where the prescribed
causes for divorce by judicial process did not exist. Thus in 1842
Mary Ann Bruner was allowed to file a petition because of "her
disability by reason of her husband not having absented himself
from her for two years," the full term necessary to constitute a
valid ground according to the statute.[352] Until 1851, when the
constitution put a stop to this evil custom, many such applications
were referred to the circuit courts, the full legal requirement
being similarly waived.[353] The early Minnesota lawmakers found
plenty of business of the same kind. "Be it enacted," runs a decree
of the assembly in 1849, "that the marriage heretofore existing
between Catherine Hathaway and her husband, Isaac Hathaway, ...
is hereby dissolved; and the said parties are restored to all the
rights and privileges of unmarried persons."[354] Another example
seems to show that a "pale-face" cannot always live happily with a
"dusky mate." It is solemnly declared "that Louis Laramie is hereby
divorced from Wa-kan-ye-ke-win, his wife, as fully and effectually,
as if the legal ceremony of marriage and its rites had never been
solemnized."[355] Similar decrees appear in the statute-book until
in 1856 constitutional authority finally put a stop to legislative
interference.[356]
[347] Special divorce acts may be found in the _Ter. Laws of
Mich._, II, 655, 709, 710, 752, 753, 769; III, 840, 842, 847,
895, 901, 905 (three cases), 907 (two cases).
[348] _Laws of Ill._ (1817-18), 356.
[349] Thus on Jan. 15, 1825, two decrees were granted in one
bill: _Laws_ (1825), 120.
[350] Act of Feb. 15, 1831: _Laws_, 71, 72. There is another
example in _Laws_ (1839), 79.
[351] _Laws of a Local Nature_ (1838), 406.
[352] _Laws of a Local Nature_ (1842), 117.
[353] _Cf._ _ibid._ (1842), 119, 120, 121; _ibid._ (1844), 148;
_ibid._ (1849), 203, 300 (two cases); _ibid._ (1850), 105, 129,
194, 342, 344; _ibid._ (1851), 404, 441, 497.
[354] _Laws of Minn._ (1849), 89.
[355] _Ibid._
[356] For examples see _Laws_ (1851), 39, 40 (four cases); and
_ibid._ (1852), 60, 61 (two cases). Seven of the acts cited are
also given or restated in _Collected Stat. of the Ter. of Minn.
and Decis. of Supreme Court_ (1853).
During the first six years of territorial life many special
divorce decrees may be found in the Nebraska laws; and they are
invariably expressed in the curt and summary style peculiar to such
legislation throughout the country, no reference usually being
made to causes or to alimony.[357] At the same time Kansas was
having a similar experience. One divorce petition was granted by
the assembly in 1857, three in 1858, eight in 1859, while in 1860
the number suddenly rose to forty-three; for this was the "last
chance" before the constitutional prohibition of 1859 went into
effect.[358] Previous to 1847 Iowa was still more indulgent. Year
after year appeals were made to the assembly for relief. Sometimes
the intention appears to be to deny the defendant the privilege of
further wedlock; as in 1840, when a decree was granted to dissolve
the marriage contract, "so far as relates to the said Harriet
Williams," who is allowed to change her name. Sometimes a partial
divorce is sanctioned, as when the marital bond between John Philips
and Nancy his wife was "so far dissolved as to permit the said
parties to live separate and apart from each other." In this case
the woman was given power to sue and be sued, and was allowed to
retain the children. In 1841-42 eleven more legislative decrees were
granted. The next year saw nineteen petitions combined in one bill,
which was passed over the governor's veto by a two-thirds vote. The
last examples occur in 1846, the year when Iowa was admitted to
the Union as a state, and when the usual constitutional interdict
appears.[359]
[357] Here is an example: "The bonds of matrimony between Obediah
J. Niles and Hannah M. Niles shall be and the same are hereby
dissolved."--_Laws and Resolutions_, I, 373 (act of Feb., 1857).
For other cases see _ibid._, 569, 570 (two cases, 1858), 653-55,
656 (three cases, 1860), 766, 767 (two cases, 1861). On Jan. 23,
1856, six petitions in one bill were referred to the judge of
the district court for the first judicial district with power to
dissolve marriage: _ibid._, 300.
[358] _Private Laws of Kan._ (1860), 232-54. For other cases see
_ibid._ (1858), 10-12 (three cases); and _ibid._ (1859), 41-45
(eight cases).
[359] _Cf._ _Laws of Ia._ (1840), 12; _ibid._ (1840-41), 7, 12;
_ibid._ (1841-42), 3, 11, 13, 28, 30, 31, 66, 73, 94, 95 (eleven
cases); _ibid._ (1842-43), 82-84 (nineteen cases); _ibid._
(1845-46), 42, 48, 51, 52, 61, 72, 79 (eleven cases).
The practice existed also in Idaho,[360] Montana,[361] and
Oregon.[362] On the Pacific coast, however, Washington is the chief
offender. Beginning with three cases in 1858 and one in 1859, the
number mounts to fifteen in 1860, seventeen in 1861, fifteen in
1862, and sixteen in 1863; while after this date the session laws
are silent on the subject.[363]
[360] There are two cases in _Laws and Res._ (1871), 86, 91;
others in _Gen. Laws_ (1879), 54, 59-61; five in _ibid._ (1881),
439-41; and four in _ibid._ (1883), 164, 165.
[361] _The Private and Spec. Laws of Mont._ (1864-65), 554, 610,
685, 695, 699, 700, show nine cases of legislative divorce.
[362] For examples see _Spec. Laws_ (1857), 12; _ibid._
(1857-58), 107, 108, 110, 111, 112 (twelve cases); _ibid._
(1858-59), 92-107 (thirty-one cases).
[363] See _Acts_ (1858), 53, 54; _ibid._ (1859), 62; _ibid._
(1860: private laws), 473-79; _Session Laws_ (1861: local laws),
71, 73, 74, 81, 83, 92, 93, 101-3, 110, 131, 132; _ibid._ (1862),
Index; _ibid._ (1863), 138-44.
In some of the old middle states the custom was particularly
tenacious. Of it the New York laws show scarcely a trace;[364] and
in those of New Jersey no evidence at all has been discovered. The
case is very different in Pennsylvania. Although in 1785 the courts
were empowered to grant full or partial divorce for the causes
specified, the habit of resorting to the assembly, especially when
the offense complained of was not a cause recognized by the statute,
survived from the provincial era. Thus in 1805 Rebecca Adkinson
was released from her spouse Thomas, who for crimes committed had
been sentenced to five years' imprisonment. "Whereas it appears
that the conduct of the said Thomas, from the month of May, 1803,
to the present time, has been one continued scene of vice, evincing
a total dereliction of morality, and an entire neglect of his wife
and tender infant," therefore, since the law has not provided for
such emergency, the assembly sets Rebecca absolutely free from the
wedding bond.[365] During the next year a case of somewhat unusual
character arose. From the preamble to the bill it appears that as
early as 1777 Jacob Sell and Eve, his wife, had divorced themselves
by mutual consent, the woman by a written instrument relinquishing
all her rights under the marriage. Thereafter, the man considering
himself entirely free from former obligations, took unto himself
another wife, "by whom he now has living six children." Through
"hard labor and honest industry" a considerable property was in due
course acquired, some of which Sell had transferred. To this under
the existing laws he could not give perfect title because of a claim
to dower which "the aforesaid Eve may be supposed to possess." For
this reason, and because he had grown old and was in a "delicate
state of health," the assembly granted his petition for an absolute
dissolution of the first marriage.[366] From this time onward many
divorce decrees may be found in the session laws; and not until
the adoption of the constitution of 1874 was the practice entirely
abandoned.[367]
[364] But in _Laws_ (1848), 94, 95, the following case of
legislative interference may be found: "The right is hereby
given to Ludwig Brunileu to apply to the supreme court of this
state, in equity, for a divorce from his wife Bertha, ... with
the same effect and on the same footing in every respect, as if
they had been married in this state, and the offence or offences
complained of had been committed in this state, and within five
years prior to the time of such application."
[365] THOMPSON, _Laws of the Commonwealth of Pa._ (1804-6), VII,
73-75.
[366] THOMPSON, _op. cit._, 326-28.
[367] See, for example, _Acts_ (1808), 138, 140, 146 (for
cruelty, force at marriage, etc.); _ibid._ (1810), 82, 89, 194
(insanity before and after marriage, imprisonment for crime,
abuse, and abandonment); _ibid._ (1811-12), 28, 34, 143, 195,
198, 228, 231, 237; _ibid._ (1820-21), 3, 29, 35, 48, 139.
It was in Delaware, however, that legislative divorce died the
hardest death. By the act of 1832 the superior court was given
"sole cognizance of granting divorces" for cruelty, abandonment,
and some other causes; and in 1852 it was enacted that no "petition
for a divorce shall be received or acted on by the general assembly
for any cause cognizable" by that court, "nor without proof of one
month's public notice of the intention to prefer such petition, by
advertisements in a newspaper published within the county of the
petitioner's residence, if there be one," or, if not, then in some
other newspaper in the state.[368] Although this declaration of the
assembly restricting its jurisdiction to cases not provided for by
law was subsequently more than once repeated,[369] there was still
a wide range for interference, even if the will of one legislature
could bind that of another. The number of petitions granted waxed
apace. In 1887 it was forty-two; in 1889, sixty-three; and two
years later, forty-eight.[370] In the meantime a remedy was sought
through appeal to constitutional interdict. Once the effort was
almost successful. By an act of April 20, 1893, the assembly
proposed an amendment to the constitution giving the supreme court
exclusive jurisdiction in divorce suits, but only "for the causes
and upon the conditions prescribed by the legislature.[371] This
amendment failed of adoption; but its purpose was soon secured in
the new constitution of 1897, which declares that "no divorce shall
be granted, nor alimony allowed, except by the judgment of a court,
as shall be prescribed by general and uniform law."[372]
[368] _Rev. Stat. of Del._ (1852), 78.
[369] _Ibid._ (1874), 150; _ibid._ (1893), 242.
[370] _Laws_ (1887), 528-40; _ibid._ (1889), 1046-64; _ibid._
(1895), 300-308.
[371] _Laws_ (1893), 617.
[372] _Const. of the State of Del._ (1897), Art. II, sec. 18, p.
141.
_b_) _Judicial divorce: jurisdiction, kinds, and causes._--Regarding
the causes of divorce the history of the middle and western states
reveals little that is peculiar as compared with that of the
southern or eastern group. On the whole, a medial course has been
pursued. There is nothing very radical or very conservative. The
statutes of these commonwealths are entitled to be looked upon as
constituting the average American type.
The policy of New York has, indeed, seemed to be exceptional.
Throughout the century absolute divorce has been allowed only on the
scriptural ground. In 1787--for the first time since New Netherland
came under English rule--a general divorce law was enacted. The
preamble hints at the recent practice of special legislation.
"Whereas," we are told, "the Laws at present in being within this
state, respecting Adultery, are very defective, and Applications
have, in Consequence, been made to the Legislature, praying their
Interposition;" and since "it is thought more advisable ... to make
some general Provision in such Cases, than to afford relief to
Individuals, upon their partial representations, without a just
and Constitutional Trial of the Facts;" therefore for the offense
named, when the persons are inhabitants of the state, a "Petition or
Bill" may be presented to the chancellor. The latter is empowered to
direct the trial of the case by a "special or common jury" before
either the supreme or any circuit court; and in case of conviction
may "pronounce the marriage between the said parties to be
dissolved, and both of them freed" from its obligations. The guilty
defendant is forbidden to "remarry any person whatsoever;" while the
innocent plaintiff is fully authorized to "make and complete another
marriage, in like manner as if the party convicted was actually
dead." The divorce is not to affect the legitimacy of the children,
and the chancellor is required to make proper orders for their care
and maintenance and for the wife's alimony.[373]
[373] Act of March 30, 1787: _Laws of the State of N. Y._ (1789),
II, 133, 134; and _ibid._ (1792), I, 428, 429.
No further legislation on the subject appears until 1813, when
some important changes in the law were made. Now a petition for
divorce, on the same grounds, may be brought only when the persons
concerned were inhabitants of the state at the time the offense was
committed; or when the marriage was solemnized or took place in the
state, and the person injured was an actual resident of the state
at the time of the offense and at the time of exhibiting the bill.
The facts are to be tried by a "special or foreign" jury at some
circuit court or sittings, to be held by a justice of the supreme
court; and the person convicted is prohibited from further marriage
only during the lifetime of the other spouse. But the most important
innovation made by this act is the provision for partial divorce in
favor of the wife. Under the same conditions as to residence, the
court of chancery is empowered to grant a _feme covert_ a decree of
"separation from bed and board forever thereafter, or for a limited
time, as shall seem just and reasonable," when the husband has been
guilty (1) of cruel and inhuman treatment; or (2) of such conduct
"as may render it unsafe and improper for her to cohabit with him,
and be under his dominion and control;" or (3) when he has abandoned
her and neglected or refused to provide for her support. In all such
cases, if the defendant prove the ill conduct of the complainant as
a justification, he may be "dismissed with or without costs in the
discretion of the court." On the other hand, whether a separation
be decreed or not, the court is authorized "to make such orders and
decree for the suitable support and maintenance" of the wife and
children by the husband or out of his property, as the chancellor
shall deem just.[374]
[374] Act of April 13, 1813: VAN NESS AND WOODWORTH, _Laws of N.
Y._ (1813), II, 197-201.
The _Revised Statutes_ of 1827-28 make careful provision for the
annulment of voidable marriages; and by the same enactment the
divorce law is recast. Through sentence of nullity the chancellor
may declare void a marriage for the following causes existing at
the time of the contract: when (1) either husband or wife was below
the age of consent; or (2) had a spouse living under a marriage
still in force; or (3) was an idiot or lunatic; or (4) when consent
of either was obtained by force or fraud; or (5) when either was
physically incompetent to enter the matrimonial state. All these
grounds of nullity, with one slight change and some modification
of the conditions on which suit may be brought, are sanctioned by
the present code.[375] Divorce from the bond of wedlock according
to the revision of 1827-28 may be granted on the same conditions
regarding residence as those prescribed in 1813, except that it
allows the injured person, if an actual inhabitant at the time of
exhibiting the bill, to bring suit whenever the offense complained
of has been committed in the state. As in 1803, the guilty defendant
is forbidden to remarry until after the death of the complainant.
The three grounds of separation from bed and board in favor of the
wife allowed in that year remain unaltered, save that under the
second head the phrase referring to her being under the husband's
"dominion and control" is omitted; and now, when the marriage takes
place out of the state, the parties must have "become and remained
inhabitants" of it for at least one year, and in order to warrant a
decree the woman must be an actual resident thereof at the time of
bringing complaint.[376]
[375] _Rev. Stat. of 1827-28_ (Albany, 1829), II, 141-44. This
law provides that no bill for annulment may be brought by the
party who was of lawful age of consent, nor by the other if
there is voluntary cohabitation after age of consent. Suit
on the ground of force or fraud is likewise barred, if there
has at any time been voluntary cohabitation; and in case of
physical disability, it must be brought within two years after
solemnization of the marriage: _ibid._, II, 142, 143. _Cf._
STOVER, _Code of Civil Procedure_ (1902), II, 1832-33, where the
last-named provision is retained. By this _Code_, II, 1626, 1627,
the fourth ground of annulment is broadened by adding the word
"duress;" and a woman is authorized to bring action (1) when she
had not reached the age of sixteen at the time of the marriage;
(2) when the marriage took place without the consent of parent
or guardian; or (3) "when it was not followed by consummation or
cohabitation, and was not ratified by any mutual assent of the
parties after the plaintiff attained the age of sixteen years."
_Cf._ _Laws_ (1887), chap. 22, p. 25, for the origin of these
clauses.
[376] _Rev. Stat. of 1827-28_, II, 144-47.
Under the existing law of New York, for adultery, absolute divorce
may be granted to either the husband or wife (1) when both were
residents of the state at the time of the offense; (2) when the
marriage took place within the state; (3) when the plaintiff was
a resident of the state when the offense was committed, and so
remains at the commencement of the suit; (4) where the offense was
committed in the state and the person injured is a resident thereof
when the action is brought. In the first instance the judgment is
"interlocutory;" and three months must elapse before it can be made
final.[377] Remarriage is allowed only under the same conditions
as in 1813 and 1827, except that now the law does not "prevent the
remarriage of the parties to the action." At present suit for
partial divorce may be brought by either spouse, and not by the wife
only, as under the earlier laws. The grounds allowed are (1) cruel
and inhuman treatment; (2) conduct rendering it unsafe and improper
for the plaintiff to cohabit with the defendant; (3) abandonment;
(4) where the wife is plaintiff, the neglect or refusal of the
husband to provide for her.[378] When the marriage takes place out
of the state the provision of 1827-28 requiring one year's previous
residence of the parties and actual residence of the plaintiff at
the commencement of the action is still maintained.[379]
[377] So required by _Laws_ (1902), II, chap. 364; STOVER, _Code
of Civil Proced._ (1902), II, sec. 1774, p. 1863.
[378] It has been decided in Kennedy _v._ Kennedy, 73 _N. Y._,
363, affirming 47 _N. Y. Supr._, 56, that "threats of violence
of such a character as to induce a reasonable apprehension of
bodily injury, and charges of infidelity, made in bad faith, as
auxiliary to and in aggravation of the threatened violence, are
sufficient to constitute 'cruel and inhuman treatment.'" _Cf._
STOVER, _Code of Civil Proced._ (1892), II, 1639, 1640, note.
A "groundless and malicious charge against a wife's chastity,
and spitting upon her are gross acts of cruelty, and words of
menace accompanied by the probability of bodily violence, if
they inflict indignity and threaten pain, are sufficient." See
Whispell _v._ Whispell, 4 BARB., 217; and _cf._ Lutz _v._ Lutz,
31 _N. Y. St. Rep._, 718; Waltermire _v._ Waltermire, 110 _N.
Y._, 183; Uhlmann _v._ Uhlmann, 17 _Abb. N. C._, 236; Mason _v._
Mason, 1 EDW., _Ch._, 278; Perry _v._ Perry, 2 BARB., _Ch._, 311.
[379] STOVER, _Code of Civil Proced._ (1902), II, 1846.
New Jersey, whose early history ran so closely parallel to that of
New York, has during the century pursued a policy regarding divorce
more liberal than that of the neighboring commonwealth. As so often
happens, the act of 1794 confuses the grounds of annulment with
those of divorce proper. The court of chancery is authorized to
decree "divorces from the bond of matrimony" (1) when the husband
and wife are within the prohibited degrees of kinship; (2) for
adultery; (3) for "wilful, continued, and obstinate desertion for
the term of seven years;" or (4) when either person had a lawful
spouse living at the time of the later marriage, although the
statute inconsistently declares such unions "invalid from the
beginning" and "absolutely void." This last-named provision is still
in force.[380] By the law of 1794, moreover, separation from bed
and board is sanctioned for "extreme cruelty" in either spouse.[381]
[380] _Gen. Stat. of N. J._ (1896), II, 1267.
[381] Act of Dec. 2, 1794: PATERSON, _Laws of N. J._ (1800), 143,
144.
A new statute appears in 1820. The conditions as to residence are
now defined; the court of chancery may grant absolute dissolution
of wedlock for the same causes as in 1794; and separation from bed
and board is still permitted for extreme cruelty, but now it may be
decreed, "forever, or for a limited time."[382] In the revision of
the divorce laws approved April 15, 1846, the term of wilful and
continued desertion is reduced to five years;[383] in 1857 two years
more are lopped off;[384] and finally a statute of 1890 declares
a period of two years' such desertion sufficient to constitute a
ground of full divorce.[385]
[382] Act of Feb. 16, 1820: _Laws of N. J._ (1821), 667-69.
[383] _Stat. of N. J._ (1847), 923.
[384] Act of March 20: _Acts_ (1857), 399. The law of 1846 is
retained in ELMER, _Digest_ (2d ed. by NIXON, Philadelphia,
1855), 205-8.
[385] Act of March 5: _Pub. Laws_ (1890), 34; _Gen. Stat._
(1896), II, 1274.
Accordingly, by the present law of New Jersey dissolution of
wedlock may be decreed by the court of chancery (1) when the
marriage is bigamous; (2) when it is within the forbidden degrees
of kinship;[386] (3) for adultery; (4) for "wilful, continued, and
obstinate desertion during the term of two years;" and (5) when at
the time of the marriage either spouse was "physically and incurably
impotent," in which case the contract is declared "invalid from the
beginning and absolutely void."[387] But it is important to observe
that in certain cases the term of desertion is subject to a peculiar
statutory definition. It is declared that "wilful and obstinate
desertion shall be ... construed as 'continued' ... notwithstanding
that after such desertion has ... begun, the deserting party
has ... been imprisoned in this or any other state or country
upon conviction by due process of law for a crime, misdemeanor or
offence, not political," anywhere committed; provided, however,
that such desertion has continued without interruption a sufficient
length of time after discharge from prison to make up when added
to the term of desertion prior to the confinement the full term of
three [two] years.[388] Since 1891 three causes of separation from
bed and board have been allowed. For desertion, adultery, or extreme
cruelty, in either spouse, the court of chancery may now decree
such partial divorce "forever thereafter, or in the case of extreme
cruelty, for a limited time, as shall seem just and reasonable;" but
in every case except for extreme cruelty the petitioner "shall prove
that he or she has conscientious scruples against applying for a
divorce from the bond of matrimony."[389]
[386] A marriage within the forbidden degrees is not void but
voidable, and until so pronounced must be treated as valid:
Boylan _v._ Deinzer, 18 STEWART, _N. J. Equity Reports_, 485.
[387] Impotence as a ground of divorce appears in _Rev. Stat._
(1874), 255. _Cf._ also _Gen. Stat._ (1896), II, 1267. Before
this enactment a marriage could not be annulled for impotence:
Anonymous, 9 C. E. GREEN, _N. J. Equity Reports_, 19.
[388] Act of Apr. 1: _Pub. Laws_ (1887), 132; also in _Gen.
Stat._ (1896), II, 1273. This provision thus seems to be in
force; if so, since the act of 1890 already cited, the term must
be two years.
[389] Act of March 4: _Pub. Laws_ (1891), 76. In general, for the
present law regulating both kinds of divorce in New Jersey, see
_Gen. Stat._ (1896), II, 1267-75.
The framers of the Pennsylvania statute of 1785 saw fit to indulge
in an apologetic preamble. "Whereas," we are assured, "it is the
design of marriage, and the wish of the parties entering into
that state, that it should continue during their joint lives, yet
where the one party is under natural or legal incapacities of
faithfully discharging the matrimonial vow, or is guilty of acts
and deeds inconsistent with the nature thereof, the laws of every
well-regulated society ought to give relief to the innocent and
injured person;" therefore it is enacted that the justices of the
supreme court may grant divorce, "not only from bed and board, but
also from matrimony,"(1) when either person at the time of the
contract was and still is physically incompetent; (2) has knowingly
entered into a bigamous marriage; (3) has committed adultery; or
(4) has been guilty of "wilful and malicious desertion, without
a reasonable cause," for the space of four years. The court is
empowered to grant a divorce from bed and board, but not from the
bond of wedlock, "if any husband shall, maliciously, either (1)
abandon his family, or (2) turn his wife out of doors, or (3) by
cruel and barbarous treatment endanger her life, or (4) offer such
indignities to her person, as to render her condition intolerable,
or life burdensome, and thereby force her to withdraw from his house
and family." In these cases the wife is allowed "such alimony as her
husband's circumstances will admit of so as the same do not exceed
the third part of the annual profits or income of his estate, or of
his occupation or labour," or the court may decree "but one of them"
as justice may require. She shall continue to enjoy this alimony
"until a reconciliation shall take place, or until the husband shall
by his petition or libel, offer to receive or cohabit with her
again, and to use her as a good husband ought to do." Then the court
is authorized either to suspend the decree; or, if the wife refuse
"to return and cohabit under the protection of the court," it may
discharge and annul the same. But if he fail to make good his offers
and engagement, the "former sentence and decree may be revived and
enforced;" and the arrears of alimony may be ordered paid.[390]
[390] Act of Sept. 19, 1785: _Laws of the Com. of Pa._ (1803),
III, 102-6. Repealed March 13, 1815: _Laws of Gen. Assem._
(1822), VI, 286; PURDON, _Digest_ (1818), 130.
By the first statute of the period, it thus appears, a liberal
divorce policy was adopted by Pennsylvania, and besides, it should
be remembered, the courts were not the only source of relief. For
many years, as already seen, the assembly exercised jurisdiction
in divorce matters. After 1785 the first step in the practical
relaxation of the law was taken in 1804, when jurisdiction, hitherto
vested exclusively in the supreme court, was extended to the county
courts of common pleas, where it still remains.[391] Since that
date the progress of legislation has been rapid enough. Under the
existing law, as the result of a century's growth, not less than
eleven grounds of complete divorce are recognized. By the statute
of 1815, repealing the law of 1785, the four causes sanctioned by
the latter are re-enacted, the term of "malicious desertion and
absence from the habitation of the other"--as the clause is now
phrased--being reduced to two years; and it is further provided that
full dissolution of marriage may be decreed (5) when any husband,
by cruel and barbarous treatment, shall have endangered the life of
his wife; or (6) offered such indignities to her person as to render
her condition intolerable and life burdensome, thereby forcing
her to withdraw from his house and family.[392] Marriage within
the forbidden degrees of affinity or consanguinity (7) was made a
ground in the same year;[393] lunacy of the wife (8) came next in
1843;[394] and in 1854 divorce was sanctioned (9) when the alleged
marriage was procured by fraud, force, or coercion, and has not been
later confirmed by the acts of the person injured; (10) when the
wife, by cruel and barbarous treatment, has rendered the condition
of her husband intolerable or life burdensome; or (11) when either
spouse has been convicted for felony with imprisonment for more than
two years.[395] These eleven causes are still in force, although in
1903 a new law regarding the crimes of either spouse to constitute a
cause was adopted.[396]
[391] _Laws of the Com._, VII, 375.
[392] Act of March 13, 1815: in _Laws of Com._ (1822), VI, 286;
and PEPPER AND LEWIS, _Digest_ (1896), I, 1633.
[393] _Laws of the Com._ (1822), VI, 288; PEPPER AND LEWIS,
_Digest_, I, 1634. But when marriages within such degrees "shall
not have been dissolved during the lifetime of the parties, the
unlawfulness of the same shall not be enquired into after the
death of either husband or wife."
[394] By the act of April 13, 1843: _Laws_ (1843), 233; PEPPER
AND LEWIS, _Digest_, I, 1636, "where the wife is lunatic or _non
compos mentis_" a petition for divorce may be "exhibited by any
relative or next friend" who shall make the affidavit provided
for in other cases of divorce.
[395] Act of May 8: _Laws_ (1854), 644; PEPPER AND LEWIS,
_Digest_ (1896), I, 1635. When divorce is granted the husband for
the tenth cause, the wife may be allowed alimony according to his
circumstances.
By an act of March 9, 1855 (_Pub. Laws_, 68; PEPPER AND LEWIS,
_Digest_, I, 1636), the courts of common pleas are given
jurisdiction in all cases of divorce "from the bonds of matrimony
for the cause of personal abuse, or for such conduct on the part
of either the husband or the wife as to render the condition of
the other party intolerable and life burdensome, notwithstanding
the parties were at the time of the occurring of said causes
domiciled in another state;" but the applicant must be a citizen
and have been a resident of the state for one year. This act,
according to judicial interpretation, does not establish new
causes for divorce, but only enlarges the jurisdiction of
the court in reference to the parties under causes already
recognized: Schlichter _v._ Schlichter, 10 _Phila. Reports_, 11
(1873). Cruel and barbarous treatment must be alleged in the
libel: Pennington _v._ Pennington, _ibid._, 22.
[396] _Laws of Pa._ (1903), 19; repealing the act of June 1,
1891: _ibid._ (1891), 142.
On the other hand, the century has produced but one change in the
special grounds of partial divorce. Petitions for separation from
bed and board are still allowed only in favor of the wife. The four
causes sanctioned in 1785, re-enacted in 1815 and 1817, are yet in
force;[397] while, since 1862, adultery on the part of the husband
is admitted as a fifth ground of complaint.[398]
[397] PEPPER AND LEWIS, _Digest_ (1896), I, 1687. _Cf._ the act
of March 13, 1815: _Laws of the Com._ (1822), VI, 286; and _Laws_
(1817), 405.
[398] _Laws_ (1862), 430; PEPPER AND LEWIS, _Digest_, I, 1637,
1638.
An important innovation appears in 1893. A new group of
discretionary causes is then created. The courts are empowered
to grant the wife a divorce, either from bed and board or from
the bond of wedlock, on four several grounds. Three of these are
identical with the third, fourth, and fifth causes of partial
divorce just enumerated. In addition, two years' "wilful and
malicious desertion" by the husband is admitted. These same four
causes are declared valid "where it shall be shown to the court by
any wife that she was formerly a citizen of this commonwealth, and
that having intermarried with a citizen of any other state or any
foreign country, she has been compelled to abandon the habitation
and domicile of her husband" in such place, thereby being "forced to
return to this commonwealth in which she had her former domicile."
In any such case, if personal service by subpœna cannot be made
upon the husband by reason of his non-residence, the court before
entering a decree shall require proof that, in addition to the
publication required by law, actual or constructive notice of the
proceedings has been given him, either "by personal service or by
registered letter to his last known place of residence, and that a
reasonable time has thereby been afforded to him to appear" and make
defense. The wife, however, is only entitled to the benefits of this
act when she has been a citizen and resident of the state for one
year previous to bringing suit.[399]
[399] Act of June 20: _Laws_ (1893), 471; PEPPER AND LEWIS,
_Digest_, I, 1638, 1639.
It must further be observed, in connection with the present laws of
Pennsylvania regarding absolute divorce, that the principle of the
colonial statute touching cases of long absence has unfortunately
been perpetuated. The snare is still set for the feet of the unwary.
"If any husband or wife, upon false rumor, in appearance well
founded, of the death of the other (when such other has been absent
for the space of two whole years), hath married ... again, he or
she shall not be liable to the pains of adultery;" but on return
the person remaining unmarried may elect either to have the former
spouse restored or to have the former contract dissolved, leaving
the second marriage undisturbed.[400]
[400] Act of 1815: _Laws of the Commonwealth_ (1822), VI, 288;
PEPPER AND LEWIS, _Digest_ (1896), I, 1634.
"While a well-founded belief in the death of her first husband
will relieve a woman marrying a second time from the pains of
adultery, it cannot validate her second marriage, if, in fact,
her first husband was living when it was solemnized."--Thomas
_v._ Thomas, 124 _Pa._, 646; s. c., 23 _W. N. C._, 410 (1889).
_Cf._ PEPPER AND LEWIS, _Digest_, I, 1634, ed. note.
By the Delaware statute of February 3, 1832, the superior court is
authorized to grant absolute divorce, or, in its discretion, partial
divorce or merely alimony, where either spouse (1) had a lawful
husband or wife living at the time of the marriage; (2) has been
wilfully absent from the other for three years with the intention
of abandonment; (3) has committed adultery; or (4) extreme cruelty;
or (5) where the male was actually impotent when the marriage took
place.[401] Just twenty years later an entirely new grouping of
causes and kinds of separation was introduced. The superior court
is empowered to grant a full divorce (1) for adultery of the wife;
and (2) for impotency of either person at the time of marriage;
while separation from bed and board is allowed (1) for adultery of
the husband; (2) for extreme cruelty; or (3) for wilful absence of
either for three years with intent to abandon. At the same time
a distinction was made between divorce and annulment. The court
is authorized to declare null and void a marriage (1) within the
prohibited degrees of affinity or consanguinity; (2) between a white
person and a negro or mulatto; (3) where either person was insane;
or (4) had a spouse living at the time of the contract.[402] At
present the annulment of voidable contracts is still governed by the
enactment of 1852.[403]
[401] _Laws of Del._ (1832), 148-50.
[402] _Rev. Stat. of Del._ (1852), 238.
[403] _Rev. Stat._ (1893), 596.
In 1859 a revised scheme was substituted. Absolute divorce
is authorized on the same two grounds as in 1852, the unjust
discrimination regarding the husband's infidelity being still
maintained. On the other hand, "a divorce from the bond of
matrimony, or from bed and board, at the discretion of the court,"
may now be decreed for (1) adultery of the husband; (2) extreme
cruelty; (3) procurement of the marriage by force or fraud; (4) want
of legal age--sixteen for males and fourteen for females--if after
that age the marriage has not been voluntarily ratified; (5) wilful
abandonment for three years; (6) conviction in any place, before or
after marriage, of a crime deemed felony by the laws of the state;
(7) habitual gross drunkenness for three years, contracted after
marriage; or (8) three years' wilful neglect by the husband to
provide his wife with the common necessaries of life.[404]
[404] Act of Feb. 24, 1859, amending the act of 1852: _Laws_
(1859), 730, 731.
By the present law of Delaware, which has existed since 1873,
the superior court may decree absolute divorce for (1) adultery
in either spouse; (2) desertion for three years; (3) habitual
drunkenness; (4) impotency at the time of marriage; (5) extreme
cruelty; or (6) conviction of felony, as in 1859. The discretionary
grounds on which the court may grant either full or limited divorce
are now reduced to two, these in substance being nearly identical
with the fourth and eighth causes sanctioned by the statute of
1859.[405]
[405] _Cf._ Act of March 12: _Laws of Del._ (1873), 633-35; or
the same in _Rev. Stat._ (1874), 475; with _Rev. Stat._ (1893),
595.
The discretionary grounds are now (1) "procurement of the
marriage by fraud for want of age, the husband being under the
age of eighteen years or the wife being under the age of sixteen
years at the time of the marriage, and such marriage not being
after those ages voluntarily ratified;" (2) "wilful neglect on
the part of the husband for three years to provide for his wife
the necessaries of life suitable to her condition."
The history of judicial divorce in the West begins with the statute
adopted for the Northwest Territory in 1795. Jurisdiction is vested
in the general court and the circuit courts, which are empowered
to grant absolute divorce (1) for adultery; (2) impotency; (3)
where either person had a husband or wife alive at the time of the
second marriage; or to grant partial divorce for extreme cruelty in
either spouse.[406] This law was repealed in 1804 by an act of the
legislature of Ohio--that portion of the Northwest Territory having
been made a state in 1802--giving the supreme court sole cognizance
of divorce suits. By it no provision for partial divorce is made;
but full dissolution of marriage is sanctioned (1) for bigamy, as
in 1795; (2) for wilful absence for five years; (3) for adultery;
and (4) for extreme cruelty.[407] After eighteen years' trial, the
plan of 1804 was in its turn superseded. Six grounds of absolute
divorce were then provided. Of these four are identical with those
just mentioned, except that the term of wilful absence is reduced
to three years. In addition there are recognized (5) physical
incompetence at the time of the marriage; and (6) sentence with
actual imprisonment for violation of the criminal laws of the state,
provided application be made during the term of confinement.[408]
Two years later a new plan was adopted. Absolute divorce was
permitted for the six causes allowed in 1822; and partial divorce,
which had not existed by statute for twenty years, was revived; the
courts, on the same six grounds, being authorized, instead of full
dissolution of wedlock, to decree separation from bed and board, or
merely alimony, according to justice and the circumstances in each
case.[409] This provision, however, was short-lived; for in 1833
partial divorce was a second time abolished.[410]
[406] CHASE, _Stat._, I, 192, 193 (act of July 15, 1795).
[407] _Ibid._, 493, 494.
[408] Act of Jan. 11, 1822: CHASE, _Stat._, II, 1210, 1211.
[409] Act of Jan. 7, 1824: CHASE, _Stat._, II, 1408, 1409.
[410] Act of Feb. 22, 1833: CHASE, _Stat._, III, 1934.
Thus matters stood until 1853, when a measure appeared by which the
law was much relaxed in several important respects. Jurisdiction,
which since 1804 had remained solely in the supreme tribunal of the
state, was now vested in the several courts of common pleas. In
addition to the six grounds for full divorce already created, four
new causes were recognized. These were (7) fraudulent contract; (8)
gross neglect of duty; (9) habitual drunkenness for three years; and
(10) a decree of divorce in another state "by virtue of which the
party who shall have obtained such decree shall have been released
from the obligations of the marriage contract, while the same
remains binding upon the other."[411]
[411] Act of March 11, 1853: SWAN, _Stat. of Ohio_ (1854),
324-28. But the provision regarding sentence and imprisonment is
differently worded. At present (BATES, _Ann. Rev. Stat._ (1900),
II, 2948) the paragraph reads: "The imprisonment of either party
in a penitentiary under sentence thereto; but the petition for
divorce under this clause shall be filed during the imprisonment
of the adverse party."
These ten causes of absolute divorce are still sanctioned by Ohio
law. No provision is made for limited divorce; but there is an
"action for alimony, which is in effect a limited divorce, and
which may be brought by the wife for any of the following causes,"
also sanctioned by the act of 1853: (1) adultery; (2) any gross
neglect of duty; (3) abandonment without good cause; (4) separation
in consequence of the husband's ill-treatment, whether the wife is
maintained by him or not; (5) habitual drunkenness; and (6) sentence
to imprisonment in a penitentiary, if application be made while the
husband is so confined.[412]
[412] For the present law of Ohio see BATES, _Ann. Rev. Stat._
(1897), II, 2804-10. _Cf._ WRIGHT, _Report_, 106. Jurisdiction is
still vested in the courts of common pleas, although in certain
counties the probate courts have cognizance: BATES, _op. cit._,
II, 2804.
Indiana, in 1816, is the next portion of the Northwest Territory
to be admitted to the Union. Two years after the attainment of
statehood her legislature passed the first divorce statute,
granting jurisdiction to the circuit courts. By the enactment full
divorce in favor of either spouse when aggrieved is allowed for
(1) adultery; (2) matrimonial incapacity; (3) bigamous contract;
(4) two years' absence with intent to abandon; (5) desertion and
living in adultery; (6) conviction for felony; and (7) in favor of
the wife when the husband's treatment of her is extremely barbarous
and inhuman.[413] In 1824 an "omnibus" clause was introduced, a
full divorce being then allowed on petition of the injured person
(8) "in all cases where the court in its discretion" shall deem the
same "just and reasonable."[414] These grounds are all sanctioned by
the act of 1831.[415] Still another cause was admitted in 1836. The
circuit courts are empowered to grant the wife absolute divorce (9)
when the husband for two years has been a habitual drunkard, and has
failed for "any unreasonable length of time to make provision for
his family." By the same act, moreover, a marriage may be dissolved
"in all cases where the parties have been guilty of murder,
manslaughter, burglary, robbery, grand or petty larceny, forgery,
counterfeiting, arson, bribery, perjury, or any other crime" the
penalty for which on conviction is "imprisonment at hard labor
in the penitentiary."[416] But, apparently, this is meant to be a
restatement of the sixth cause above given.[417]
[413] Act of Jan. 26, 1818: _Laws of the State of Ind._ (1818),
226-29.
[414] _Rev. Laws_ (1824), 156, 157; same in _ibid._ (1831),
213-15.
[415] Act of Jan. 17, 1831: _Rev. Laws_ (1831), 213.
[416] _Laws of a Gen. Nature_ (1836), 69.
[417] Nevertheless, the act of 1836 provides for causes in
addition to those sanctioned by the act of 1831, which includes
conviction for felony as in 1818.
Only two years elapsed before a new general statute was adopted,
authorizing full divorce on eight grounds. Six of these correspond
to the first, second, sixth, seventh, eighth, and ninth causes
already sanctioned. Bigamous marriage and desertion with adultery
no longer appear as causes; while the fourth ground, as above
enumerated, is so modified as to require a separate statement for
the husband and wife respectively. The husband (7) is allowed a full
divorce for two years' absence of the wife with intent to abandon;
and the wife is granted the same relief (8) for like absence of the
husband, "and also for any other cause or causes"--a most singular
legislative freak.[418] In 1843 this vicious clause was dropped.
Abandonment for two years is now made a cause of divorce in favor of
either person, thus reducing the number of legal grounds to seven.
At the same time, in modification of a cause already existing,
the wife is allowed a petition on account of "cruel and inhuman
treatment" by the husband, "or when his conduct towards her has
been such as may render it unsafe and improper for her to live with
him." The other five causes sanctioned by the statute of 1838 are
re-enacted without change.[419] A relaxation of the law takes place
in 1849. One year's abandonment is declared sufficient to constitute
a cause; but in such case the court is especially empowered, in its
discretion, to grant a divorce, waiving all objections in regard to
time of separation, if it deems a reconciliation "hopeless."[420]
[418] _Rev. Stat._ (1838), 242-44. The sixth ground, as
enumerated in the text, the first of this act, is "any crime"
committed in the United States or the territories, the punishment
for which is deemed "infamous."
[419] _Rev. Stat._ (1843), 598 ff.
[420] Act of June 1: _Gen. Laws_ (1849), 62, 63.
A pause of three years next ensues before the lawmaker resumes
his tinkering with the causes of divorce. The act of 1852 admits
the seven general grounds, as these had existed since the change
in 1849; but with two important modifications. For now "habitual
drunkenness," without reference to the term during which it has
existed, and cruel treatment, each on the part of either husband or
wife, are constituted reasons for dissolving the marriage bond. By
the same law a divorce for adultery is denied when there has been
(1) connivance; (2) voluntary cohabitation after knowledge of the
offense; (3) neglect to petition within two years; or (4) when the
petitioner is guilty of the same crime.[421] Seven years later the
time of abandonment, to constitute a cause, was reduced to one year,
the court being thus deprived of its discretionary power to grant a
divorce for desertion during a shorter period.[422]
[421] _Rev. Stat._ (1852), II, 233-38.
[422] _Laws of Ind._ (1859), 108.
Finally the long series of enactments defining the grounds of
absolute divorces came to a halt in 1873, when the law of Indiana in
this regard took its present form. The superior and circuit courts,
on petition of either spouse, are granted jurisdiction. Three very
important and beneficial amendments, producing a marked decrease in
the number of divorces annually granted, are now made. The term of
abandonment is increased from one year to two years; "failure of
the husband to make reasonable provision for his family" is changed
to such failure for a "period of two years;" and, most significant
of all, the omnibus clause, existing since 1824 and rephrased in
1838, providing that divorces may be granted "for any other cause"
which the court shall deem "reasonable and proper," is stricken
out.[423] As a result, the marriage tie may now be dissolved for
(1) adultery; (2) impotence existing at the time of the marriage;
(3) abandonment for two years; (4) cruel and inhuman treatment; (5)
habitual drunkenness; (6) failure of the husband to make reasonable
provision for his family for two years; (7) the conviction of either
person, in any country, subsequent to the marriage, of an infamous
crime. Until very recently limited divorce was not recognized in
Indiana; but a married woman might bring action for the support of
herself and infant children in the following cases, being analogous
to those sanctioned by the Ohio law: (1) when the husband shall have
deserted his wife, or wife and children, without leaving sufficient
provision for support; (2) when he shall have been convicted of
felony and imprisoned in the state prison, not leaving his wife, or
wife and children, the same provision; (3) when he is a habitual
drunkard and by reason thereof becomes incapacitated or neglects
to provide for his family; or (4) when he renounces the marriage
covenant, or refuses to live with his wife in the conjugal relation,
by joining himself to a sect or denomination the rules and doctrines
of which require such renunciation or forbid a man and woman to
dwell and cohabit together in the conjugal relation according to
the true intent and meaning of the institution of marriage.[424]
A statute of 1903 authorizes separation from bed and board "for a
limited time" in case of (1) adultery; (2) "desertion, or where the
wife is plaintiff, neglect or refusal to suitably provide for her,
covering a period of six months;" (3) habitual cruelty of one party,
"or such constant strifes of both parties as render their living
together intolerable;" (4) habitual drunkenness, "or the confirmed
and excessive use of morphine, cocaine, or any other drug;" (5)
gross and wanton neglect of conjugal duty for six months.[425]
[423] For construction of the omnibus clause, see Ritter _v._
Ritter, 5 BLACKF., 81.
[424] Act of March 10: _Laws of Ind._ (1873), 107-12; also
HORNER, _Rev. Stat._ (1896), I, secs. 1024-49; II, sec. 5132;
BURNS, _Ann. Stat._ (1901), I, 443, 444; III, 559.
[425] _Laws of Ind._ (1903), 114, 115.
In 1818, closely following Indiana, Illinois was carved from the
bountiful region northwest of the Ohio River. After a year's
delay, a divorce law was enacted in 1819; and this, as amended in
1825, authorizes both kinds of separation. Full dissolution of
wedlock may be granted for (1) physical incapacity at the time of
solemnization; (2) adultery; (3) two years' voluntary and continued
absence. Partial divorce is likewise sanctioned for (1) extreme and
repeated cruelty in either spouse: or (2) constant and habitual
intemperance in either for two years. "But in the latter case it
shall be incumbent on the complaining party to show that he or she
had performed all the duties of a faithful and affectionate husband
or wife."[426]
[426] Act of Jan. 17, 1825, to amend an act of Feb. 22, 1819:
_Laws of Ill._ (1825), 169.
The act of 1827 is silent as to limited divorce, which has not since
been recognized in Illinois. Full divorce may now be granted by the
circuit courts, sitting as courts of equity, when either person (1)
was at the time of the marriage and still is naturally impotent;
(2) had a husband or wife living at the time of the marriage; (3)
has since been guilty of adultery; or (4) wilful desertion for
two years; or (5) extreme and repeated cruelty; or (6) habitual
drunkenness for two years.[427] A step backward was taken in 1832
through the adoption of a kind of omnibus clause. By proceedings
in chancery full dissolution of marriage is authorized (7) for all
causes of divorce not provided for by any law of the state.[428]
Next, after an interval of thirteen years, on the petition of
the aggrieved, comes (8) conviction for felony or other infamous
crime.[429] This is followed after the lapse of thirty years more
by the sanction (9) of absolute divorce when either person "has
attempted the life of the other by poison or other means showing
malice."[430]
[427] _Rev. Code_ (1827), 180, 181.
[428] Act of Dec. 4, 1832: _Rev. Laws_ (1833), 234, 235. In the
statutes this is not enumerated as a cause; but it surely is one
in effect.
[429] _Rev. Stat._ (1845), 196; also in PURPLE, _Comp._ (1856),
I, 493, 494; and in _Stat. of Ill._ (1864), 150, 152.
[430] Act of March 10, 1874: GROSS, _Stat. of Ill., 1818-74_ (3d
ed., 1872-74), III, 176.
The tale of causes allowed by the present law of Illinois is thus
complete. Separation from bed and board is not provided for by
statute. In general, chancery process is required. The circuit
courts of the respective counties and the superior court of
Cook county (Chicago) are clothed with jurisdiction in divorce
controversies.[431]
[431] HURD, _Rev. Stat._ (1898), 631-34. _Cf._ _Rev. Stat._
(1845), 196, 197; and STARR AND CURTIS, _Ann. Stat._ (1896), II,
1435-55.
Michigan became a separate territory in 1805, and seven years
thereafter the supreme court was granted jurisdiction in both kinds
of divorce.[432] By the act of 1819 marriage may be dissolved for
adultery in either spouse, when the husband and wife are inhabitants
of the territory, or when the marriage was solemnized therein; as
also when the injured person was an actual resident of the territory
at the time of the offense, and so remains when the bill is filed.
When guilty, the wife forfeits her right of dower. On the other
hand, the court may grant her a divorce _a mensa_, forever or for a
limited time, (1) for "cruel and inhuman treatment;" (2) for such
conduct on the part of the husband "as may render it unsafe and
improper for her to cohabit with him and be under his dominion and
control;" or (3) when "he has abandoned her and refuses or neglects
to provide" for her support.[433]
[432] Act of 1812: _Territorial Laws of Mich._, I, 183.
[433] Act of Nov. 13, 1819: _Territorial Laws of Mich._, I,
495-98; _cf._ the act of Apr. 12, 1827: _ibid._, II, 363-66,
repeating the provisions given in the text from the act of 1816.
A different plan appears in 1832. A divorce from the bond of
wedlock is now permitted (1) for impotency, and (2) for adultery.
Furthermore, the court, in its discretion, is empowered to grant
either person a full or a partial divorce (1) for extreme cruelty,
or (2) for five years' wilful desertion. By this act jurisdiction
is vested in the supreme court and either of the circuit courts of
the territory.[434] A statute of the next year retains all these
provisions of 1832, except that the term of wilful desertion, to
constitute a discretionary ground, is reduced to three years.[435]
Five years later, after Michigan became a state, a divorce is made
unnecessary when a marriage is void or when the persons contracting
it are below the age of consent. At the same time the grounds of
separation are reconsidered. Absolute divorce is now authorized (1)
for adultery; (2) for impotence; (3) for five years' desertion;
(4) for sentence to imprisonment at hard labor for three years or
more; and either a full or a partial divorce, on the petition of
either spouse, (1) for extreme cruelty; (2) for three years' "utter
desertion;" or (3) on application of the wife, when the husband,
being of sufficient ability to provide a suitable maintenance for
her, "shall grossly or wantonly and cruelly refuse or neglect to
do so."[436] In 1844 extreme cruelty, "whether practiced by using
personal violence, or by any other means," was substituted for the
corresponding clause in the act of 1838.[437] Next, in 1846 and 1847
came swift changes in the law of desertion, but only in their turn
to be swept away in 1848.[438] So in 1851 we reach an act by which
the grounds of divorce in Michigan have been determined for half a
century.
[434] Act of June 28, 1832: _Ter. Laws of Mich._, III, 931, 932.
[435] Act of Apr. 4, 1833: _Ter. Laws of Mich._, III, 1005-7.
[436] _Rev. Stat._ (1838), 336, 337.
[437] _Acts_ (1844), 74.
[438] The _Rev. Stat._ (1846), 333, make the term of desertion
two years for either absolute or limited divorce. The _Acts_
(1847), 168, 169, lengthen the period to five years for absolute
divorce and three years for partial divorce. But these changes
are repealed by _Acts_ (1848), 194.
By the existing law, as then enacted, on application of the
aggrieved, a full divorce may be decreed by the court of chancery,
or by the circuit court of the county where the parties or one
of them resides, for (1) adultery; (2) physical incompetency;
(3) sentence to imprisonment for three years or more, no pardon
to affect the status of the divorced persons; (4) two years'
desertion; (5) when the husband or wife shall have become a habitual
drunkard; "and (6) the circuit courts may, in their discretion, upon
application as in other cases, divorce from the bonds of matrimony
any party who is a resident of this state, and whose husband or
wife shall have obtained a divorce in any other state." The same
tribunals are authorized, in their discretion, to grant either a
limited or a full divorce in favor of the aggrieved for (1) extreme
cruelty, "whether practiced by using personal violence, or by any
other means;" (2) utter desertion for two years; or (3) on complaint
of the wife for the husband's neglect to provide, as by the law of
1838.[439]
[439] HOWELL, _Gen. Stat._ (1882-83), II, 1621-30; MILLER, _Comp.
Laws_ (1899), III, 2653-66; _cf._ _Acts_ (1851), 71, 72. The
partial divorce may, as originally, be "forever or for a limited
time."
Wisconsin, the remaining[440] portion of the region originally
governed by the ordinance of 1787, was erected into a separate
territory in 1836. Its divorce legislation, which in its general
outline is similar to that of Michigan, began in 1838-39, when the
district court of each county was given jurisdiction in both kinds
of separation. The causes of absolute divorce then recognized are
(1) impotence; (2) adultery. Those of partial divorces are (1)
extreme cruelty; (2) two years' wilful desertion; (3) habitual
drunkenness; (4) abandonment of the wife by the husband, or "his
refusal or neglect to provide for her."[441]
[440] Except a part of Minnesota.
[441] _Stat. of the Ter. of Wis._ (1838-39), 140, 141.
In 1849, the year following the attainment of statehood, was
adopted a new statute by which the foundation of the present
system was laid. By it, as under the present law, a marriage is
declared absolutely dissolved without any decree of divorce or
legal process whenever either spouse is sentenced to imprisonment
for life; and a pardon is not to effect a restoration of conjugal
rights. The circuit courts are granted jurisdiction. Both full
and partial divorce are provided for. Absolute divorce is allowed
for (1) adultery; (2) impotence; (3) sentence of either spouse to
imprisonment for a period of three years or more, no pardon working
a restoration of conjugal rights; (4) wilful desertion for one
year next preceding the commencement of the action; (5) when the
treatment of the wife by the husband has been "cruel and inhuman,
whether practiced by using personal violence, or by any other
means," or "when the wife shall be guilty of like cruelty to her
husband or shall be given to intoxication;" (6) when the husband
or wife shall have been a habitual drunkard for the space of one
year immediately preceding the filing of the bill. To these grounds
was added as a cause in 1866: (7) voluntarily living entirely
separate for the five years next preceding the commencement of the
action.[442] So the law of absolute divorce remains at the present
time, all attempts to make insanity a permanent ground having thus
far failed.[443]
[442] Act of March 31, _Gen. Laws_ (1866), 40.
[443] In 1856 the court in its discretion was authorized to
decree a divorce when either spouse shall become incurably
insane and "shall have so remained for the term of seven years
continuously," the husband being required to give bond with
security for the maintenance of the wife during her life: Act
of March 31, _Gen. Acts_ (1856), 96. After two years this act
was repealed: _Gen. Laws_ (1858), 82. A second attempt was made
in 1881. A full divorce was then authorized when either husband
or wife shall have been insane for the space of five years
immediately preceding the commencement of the action, and the
court shall be satisfied that the insanity is incurable: Act of
April 2, _Laws_ (1881), 376-78. This statute was repealed the
next year: _Laws_ (1882), 798.
The history of partial divorce in Wisconsin is soon told. The
provisions of the act of 1849 are still in force. The causes of
separation from bed and board, forever or for a limited time,
there recognized are (1) the fourth, fifth, and sixth grounds
of full divorce above specified; (2) extreme cruelty of either
spouse; (3) on complaint of the wife when the husband, being of
sufficient ability, shall refuse or neglect to provide for her; or
(4) when his conduct toward her is such as may render it unsafe
and improper for her to live with him. It is expressly declared
that a divorce from the bond of matrimony may be decreed for either
of the three causes last named, "whenever, in the opinion of the
court, the circumstances of the case are such that it will be
discreet and proper to do so." From the somewhat awkward arrangement
of its provisions, therefore, the general effect of this statute
appears to be that a full divorce _may_ be granted for any ground
recognized by it, provided the court deems it prudent to exercise
its discretionary authority. Furthermore, it must be noted that by
the existing law, just as in 1849, the circuit court is empowered to
allow separate maintenance when a partial divorce is denied.[444]
[444] _Cf._ _Rev. Stat._ (1849), 393-98; _ibid._ (1858), 623-28;
_ibid._ (1872), II, 1269-76; _Ann. Stat._ (1889), I, 1362-75; and
SANBORN AND BERRYMAN, _Wis. Stat._ (1899), I, 1702-20.
We may next pass to the long list of new states in the West and
Northwest whose generous boundaries spread over the Mississippi
valley, the vast regions of the Rocky Mountains, and the Pacific
slope. The course of legislation in Minnesota has run closely
parallel to that of Wisconsin, though it is divergent in some
important details. In 1851, seven years before the admission of
that state to the Union, a statute logically declared bigamous
marriages and those within the forbidden degrees, if solemnized in
the territory, void without a decree. At the same time, as causes
of absolute divorce in favor of the aggrieved were sanctioned
(1) adultery; (2) impotency; (3) sentence to imprisonment in the
penitentiary after the marriage, no subsequent pardon effecting a
restoration of conjugal rights; (4) wilful desertion for one year
next preceding the commencement of the suit; (5) cruel and inhuman
treatment, whether practiced by using personal violence or by any
other means; (6) habitual drunkenness for one year immediately
preceding the filing of the complaint. By this act no provision is
made for partial divorce.[445] The term of wilful desertion was
increased from one year to three years in 1866;[446] but in 1895 the
shorter period was restored, so that under the existing law the six
grounds of absolute divorce as sanctioned in 1851 are recognized,
except that "cruel and inhuman treatment" is constituted a cause,
the original explanatory clause being omitted.[447] On the other
hand, limited divorce is now provided for. Since 1876, on complaint
of a married woman, separation from bed and board is authorized
(1) for cruel and inhuman treatment by the husband; (2) for such
conduct on his part as may render it unsafe and improper for her to
cohabit with him; or (3) for abandonment and refusal or neglect by
him to provide for her. The district court of the county where the
persons or one of them resides is now vested with jurisdiction in
all actions for divorce or for the annulment of marriage.[448]
[445] _Rev. Stat. of Minn._ (1851), 272-76.
[446] _Gen. Stat. of Minn._ (1866), 408-12. "The revisers
repeated this chapter under two titles, the second being entitled
'Limited Divorces,' but the legislature rejected Title II and did
not change or amend Title I."--_Ibid._, 408, note.
[447] Act of April 22, _Session Laws_ (1895), 158. _Cf._ _Gen.
Stat._ (1894), I, 1267, for the law modified in 1866.
[448] _Cf._ _Laws_ (1876), chap. 118; _Gen. Stat. of Minn._
(1894), I, 1273, 1267; _Session Laws_ (1895), 158.
One of the worst and most characteristic features of American
state legislation is seen in the session laws of Iowa, where
the statute-maker is perennially engaged in adopting, changing,
abrogating, or re-enacting plans of divorce and alimony. The first
step was taken in 1838, when the district court of the county where
the persons or one of them resides was given jurisdiction on the
petition of the aggrieved. The grounds of absolute divorce then
allowed are (1) impotence; and (2) adultery. Those of divorce _a
mensa_ or of divorce from the bond of wedlock, in the discretion of
the court, are (1) extreme cruelty; or (2) wilful desertion for one
year.[449] This law was repealed and a new one adopted in the next
year. Nothing is now said of separation from bed and board; but a
full divorce may be had by the injured spouse for (1) impotency;
(2) bigamous marriage; (3) adultery; (4) one year's desertion;
(5) felony; (6) habitual drunkenness; (7) cruel treatment; (8)
indignities.[450] Three years later this statute in turn gave place
to another by which the same causes are sanctioned, except, under
the sixth head, it is provided that "said habitual drunkenness
shall be contracted after marriage."[451] In 1846, however, this
proviso was dropped; and at the same time an "omnibus" clause was
sanctioned. A full divorce may now be granted (9) "when it shall
be made fully apparent to the satisfaction of the court, that the
parties cannot live in peace and happiness together, and that their
welfare requires a separation."[452] The eighth ground was dropped
in 1851, and at the same time it was again specified under the sixth
head that drunkenness shall have become habitual after marriage.[453]
[449] Act of Dec. 29, 1838: _Laws of Ia._ (1838-39), 179, 180.
[450] Act of Jan. 17, 1840: _Laws of Ia._ (1839-40), 120-22.
[451] Act of Jan. 20, 1843: _Rev. Stat. of Ia._ (1843), 237-41.
[452] Act of Jan. 17, 1846: _Laws of Ia._ (1845-46), 23.
[453] _Code of Ia._ (1851), 223.
Thus matters stood until 1855, when the worthy legislators managed
to put the law in a curiously awkward shape. It was then decreed
that "hereafter no divorce otherwise than from bed and board shall
be granted except" (1) where either spouse shall commit adultery;
(2) be convicted of felony; (3) was impotent at the time of the
marriage; or (4) wilfully deserts the other for the space of
three years. "In all other enumerated causes heretofore deemed
sufficient"--continues the statute--"no divorce otherwise than a
divorce from bed and board shall be granted."[454] This scheme was
short-lived. An act of 1858 revives the law as it stood in 1851,
except that the term of wilful desertion was extended to two years
and the omnibus clause was omitted, thus leaving seven grounds of
petition in force.[455]
[454] Act of Jan. 24, 1855: _Laws of Ia._ (1854-55), 112, 113.
[455] Act of March 15: _Laws of Ia._ (1858), 97, 98.
The present law of Iowa governing the causes of divorce took its
rise in the code of 1873. The district court in the county where
the plaintiff or defendant resides still has jurisdiction. Limited
divorce is not recognized, but "it appears that courts of equity
will grant alimony without divorce to a wife where she is separated
from her husband because of his misconduct, though no express
statutory provision is found authorizing such proceeding."[456] A
full divorce may be decreed against the husband (1) when he has
committed adultery subsequent to the marriage; (2) when he wilfully
deserts his wife and absents himself without reasonable cause for
the space of two years; (3) when after marriage he is convicted of
felony; or (4) becomes addicted to habitual drunkenness; or (5) when
he is guilty of such inhuman treatment as to endanger the life of
his wife; and against the wife, for the five causes just enumerated,
and also (6) when at the time of the marriage she was pregnant
by a man other than her husband, unless the husband then had an
illegitimate child or children living and the fact was unknown to
her.[457]
[456] WRIGHT, _Report_, 96. _Cf._ Graves _v._ Graves, 36 _Ia._,
310; Whitcomb _v._ Whitcomb, 46 _Ia._, 437.
[457] _Cf._ _Ann. Code of Ia._ (1897), 1135-47; and _Code of Ia._
(1873), 399-401; also _Laws of Ia._ (1870), 429 (jurisdiction).
The divorce legislation of Kansas begins in 1855, the next year
after the territory was erected. The grounds on which the aggrieved
may secure a complete dissolution of the matrimonial bond are (1)
impotence continuing from the time of the marriage; (2) bigamous
marriage; (3) adultery; (4) wilful desertion and absence for two
years without reasonable cause; (5) conviction of felony or infamous
crime; (6) habitual drunkenness for two years; (7) cruel and
barbarous treatment endangering life; (8) intolerable indignities
offered to the person; (9) vagrancy of the husband.[458] In 1859
this law gave place to another, by which the fifth, eighth, and
ninth causes above enumerated were omitted; the term of wilful
absence, under the fourth head, was reduced to one year; and
habitual drunkenness became a cause, without specification of the
time during which it must have existed.[459] The very next year this
plan was in its turn superseded. A new act allowed separate alimony
without dissolution of marriage, and sanctioned eleven grounds
of total divorce. The first four of these are identical with the
corresponding numbers in 1855, as modified in 1859. In addition are
approved (5) pregnancy of the wife at the time of the marriage by
a man other than the husband; (6) extreme cruelty; (7) fraudulent
contract; (8) gross neglect of duty; (9) habitual drunkenness; (10)
sentence for crime and imprisonment therefor in a penitentiary,
provided complaint be filed during the term of confinement; (11)
when one person has secured a divorce in another state or territory,
leaving the obligation binding on the other.[460]
[458] _Stat. of Kan._ (1855), 310, 311.
[459] Act of Feb. 7: _Gen. Laws of Kan._ (1859), 385.
[460] Act of Feb. 27: _Gen. Laws of Kan._ (1860), 105-10. An Act
of June 4, 1861, provides that a person presenting a copy of an
act of the Territory of Kansas by which he has been divorced
"shall be entitled to a decree of divorce without issuing summons
thereon."--_Gen. Laws_ (1861), 146.
The eleventh cause just specified was dropped in 1868. The remaining
ten were then re-enacted;[461] and these grounds, without addition
or essential change, constitute the law of Kansas at the present
time. In this state there is no separation from bed and board.
But "the wife may obtain alimony alone from the husband without
a divorce ... for any of the causes for which a divorce may be
granted."[462] By the constitution, jurisdiction in all divorce
actions is vested in the district courts;[463] and the supreme court
has authority when suits are brought up on error.[464]
[461] "Code of Civil Procedure," approved Feb. 25, 1868, Art.
XXVIII: in PRICE, RIGGS, AND MCCAHON, _Gen. Stat. of Kan._,
757-59. The law of 1868 reappears in DASSLER, _Laws of Kan._
(1876), II, 761-63; _ibid._ (1879), 690-92.
[462] _Laws of Kan._ (1897), II, 273-77; DASSLER, _Gen. Stat._
(1901), 1055.
[463] Art. II, sec. 18, Const. of 1859.
[464] See Ulrich _v._ Ulrich, 8 _Kan._, 402. _Cf._ Wesner _v._
O'Brien, 1 _Ct. App._, 416; and McPherson _v._ the State, 56
_Kan._, 140 ff.