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1911 Encyclopedia Britannica

Divorce

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DIVORCE (Lat. divortium, derived from dis-, apart, and vertere, to turn), the dissolution, in whole or in part, of the tie of marriage. It includes both the complete abrogation of the marriage relation known as a divorce a vinculo matrimonii, which carries with it a power on the part of both parties to the marriage to remarry other persons or each other, and also that incomplete severance not involving powers to remarry, which was formerly known as divorce a mensa et thoro, and.has in England been termed "judicial separation." Less strictly, divorce is commonly understood to include judicial declarations of nullityof marriage, which, while practically terminating the marriage relation, proceed in law on the basis of the marriage never having been legally established.

The conditions under which, in different communities, divorce has at different times been permitted, vary with the aspects in which the relation of marriage has been regarded. When marriage has been deemed to be the acquisition by the husband of property in the wife, or when it has been regarded as a mere agreement between persons capable both to form and to dissolve that contract, we find that marriage has been dissoluble at the will of the husband, or by agreement of the husband and wife. Yet even in these cases the interest of the whole community in the purity of marriage relations, in the pecuniary bearings of this particular contract, and the condition of children, has led to the imposition of restrictions on, and the attachment of conditions to, the termination of the obligations consequent on a marriage legally contracted. But the main restrictions on liberty of divorce have arisen from the conception of marriage entertained by religions, and especially by one religion. Christianity has had no greater practical effect on the life of mankind than in its belief that marriage is no mere civil contract, but a vow in the sight of God binding the parties by obligations of conscience above and beyond those of civil law. Translating this conception into practice, Christianity not only profoundly modified the legal conditions of divorce as formulated in the Roman civil law, but in its own canon law defined its own rule of divorce, going so far as in the Western (at least in its unreformed condition), though not the Eastern, branch of Christendom to forbid all complete divorces, that is to say, all dissolutions of marriage carrying with them the right to remarry.

History The Roman Law of Divorce before Justinian. - The history of divorce, therefore, practically begins with the law of Rome. It took its earliest colour from that conception of the patria potestas, or the power of the head of the family over its members, which enters so deeply into the jurisprudence of ancient Rome. The wife was transferred at marriage to the authority of her husband, in manus, and consequently became so far subject to him that he could, at his will, renounce his rule over her, and terminate his companionship, subject at least to an adjustment of the pecuniary rights which were disturbed by such action. So clearly was the power of the husband derived from that of the father, that for a long period a father, in the exercise of his potestas, could take his daughter from her husband against the wishes of both.. It may be presumed that this power, anomalous as it appears, was not unexercised, as we find that a constitution of Antoninus Pius prohibited a father from disturbing a harmonious union, and Marcus Aurelius afterwards limited this prohibition by allowing the interference of a father for strong and just cause - magna et justa causa interveniente. Except in so far as it was restrained by special legislation, the authority of a husband in the matter of divorce was absolute. As early indeed, however, as the time of Romulus, it is said that the state asserted its interest in the permanence of marriage by forbidding the repudiation of wives unless they were guilty of adultery or of drinking wine, on pain of forfeiture of the whole of an offender's property, one-half of which went to the wife, the other to Ceres. But the law of the XII. Tables, in turn, allowed freedom of divorce. It would appear, however, that the sense of the community was so far shocked by the inhumanity of treating a wife as mere property, or the risk of regarding marriage as a mere terminable contract, that, without crystallizing into positive enactment, it operated to prevent the exercise of so harsh and dangerous a power. It is said that for Soo years no husband took advantage of his power, and it was then only by an order of a censor, however obtained, that Spurius Carvilius Ruga repudiated his wife for barrenness. We may, however, be permitted to doubt the genuineness of this censorial order, or at least to conjecture the influence under which the censor was induced to intervene, when we find that in another instance, that of L. Antonius, a censor punished an unjust divorce by expulsion from the senate, and that the exercise of their power by husbands increased to a great and alarming extent. Probably few of the admirers of the greatest of Roman orators have not regretted his summary and wholly informal repudiation of Terentia. At last the lex Julia de adulteriis, while recognizing a power of divorce both in the husband and in the wife, imposed on it, in the public interest, serious restrictions and consequences. It required a written bill of divorce ( libellus repudii ) to be given in the presence of seven witnesses, who must be Roman citizens of age, and the divorce must be publicly registered. The act was, however, purely an act of the party performing it, and no idea of judicial interference or contract seems to have been entertained. It was not necessary for either husband or wife giving the bill to acquaint the other with it before its execution, though it was considered proper to deliver the bill, when made, to the other party. In this way a wife could divorce a lunatic husband, or the paterfamilias of a lunatic wife could divorce her from her husband. But the lex Julia was also the first of a series of enactments by which pecuniary consequences were imposed on divorce both by husbands and wives, whether the intention was to restrain divorce by penalties of this nature, or to readjust pecuniary relations settled on the basis of marriage and disturbed by its rupture. It was provided that if the wife was guilty of adultery, her husband in divorcing her could retain one-sixth of her dos, but if she had committed a less serious offence, one-eighth. If the husband was guilty of adultery, he had to make immediate restitution of her dowry, or if it consisted of land, the annual proceeds for three years; if he was guilty of a less serious offence, he had six months within which to restore the dos. If both parties were in fault, no penalty fell on either. The lex Julia was followed by a series of acts of legislation extending and modifying its provisions. The legislation of Constantine, A.D. 331, specified certain causes for which alone a divorce could take place without the imposition of pecuniary penalties. There were three causes for which a wife could divorce her husband with impunity: (1) murder, (2) preparation of poisons, (3) violation of tombs; but if she divorced him for any other cause, such as drunkenness, or gambling or immoral society, she forfeited her dowry and incurred the further penalty of deportation. There were also three causes for which a husband could divorce his wife without incurring any penalty: (1) adultery, (2) preparation of poisons, (3) acting as a procuress. If he divorced her for any other cause, he forfeited all interest in her dowry; and if he married again, the first wife could take the dowry of the second.

In A.D. 421 the emperors Honorius and Theodosius enacted a law of divorce which introduced limitations on the power of remarriage as an additional penalty in certain cases. As regards a wife: (1) if she divorced her husband for grave reasons or crime, she retained her dowry and could remarry after five years; (2) if she divorced him for criminal conduct or moderate faults, she forfeited her dowry, became incapable of remarriage, and liable to deportation, nor could the emperor's prerogative of pardon be exerted in her favour. As regards a husband: if he divorced his wife (1) for serious crime, he retained the dowry and could remarry immediately; (2) for criminal conduct, he did not retain the dowry, but could remarry; (3) for mere dislike, he forfeited the property brought into the marriage and could not remarry.

In A.D. 449 the law of divorce was rendered simpler and certainly more facile by Theodosius and Valentinian. It was provided that a wife could divorce her husband without incurring any penalty if he was convicted of any one of twelve offences: (1) treason, (2) adultery, (3) homicide, (4) poisoning, (5) forgery, (6) violating tombs, (7) stealing from a church, (8) robbery, (g) cattle-stealing, (10) attempting his wife's life, (11) beating his wife, (12) introducing immoral women to his house. If the wife divorced her husband for any other cause, she forfeited her dowry, and could not marry again for five years. A husband could divorce his wife without incurring a penalty for any of these reasons except the last, and also for the following reasons: (1) going to dine with men other than her relations without the knowledge or against the wish of her husband; (2) going from home at night against his wish without reasonable cause; (3) frequenting the circus, theatre or amphitheatre after being forbidden by her husband. If a husband divorced his wife for any other reason, he forfeited all interest in his wife's dowry, and also any property he brought into the marriage.

The above sketch of the legislation prior to the time of Justinian, while it indicates a desire to place the husband and wife on something like terms of equality as regards divorce, indicates also, by its forbidding remarriage and by its pecuniary provisions in certain cases, a sense in the community of the importance in the public interest of restraining the violation of the contract of marriage. But to the Roman marriage was primarily a contract, and therefore side by side with this legislation there always existed a power of divorce by mutual consent. We must now turn to those principles of the Christian religion which, in combination with the legislation above described, produced the law formulated by Justinian.

1 The Christian View of Divorce

2 Effect of Christianity on the Law of Rome

3 Effect of Divorce on Children in the Law of Rome

4 The Canon Law of Divorce

5 Effect of the Reformation

6 The Constitution of the Court

7 Modifications of the Act of 1857.

8 Summary Proceedings for Separation

9 Statistics

The Christian View of Divorce

The Christian law of divorce as enunciated by its Founder was expressed in a few words, but these, unfortunately, by no means of agreed interpretation. To appreciate them it is necessary to consider the enactment of the Mosaic law, which also was expressed in few words, but of a meaning involved in much doubt. The phrase in Deut. xxiv. 1-4, which is translated in the Authorized Version "some uncleanness," but in the Revised Version, "some unseemly thing," and which is the only cause stated to justify the giving of a "bill of divorcement," was limited by the school of Shanmai to moral delinquency, but was extended by the rival school of Hillel to causes of trifling importance or even to motives of caprice. The wider interpretation would seem to be supported by the words of Christ (Matt. v. 31), who, in indicating His own doctrine in contradistinction to the law of Moses, said, "Whosoever shall put away his wife, saving for the cause of fornication (iropvelas ), causeth her to commit adultery; and whosoever shall marry her that is divorced committeth adultery." The meaning of these words of Christ Himself has been involved in controversy, which perhaps was nowhere carried on with greater acuteness or under more critical conditions than within the walls of the British parliament during the passage of the Divorce Act of 1857. That they justify divorce of a complete kind for moral delinquency of some nature is supported by the opinion probably of every competent scholar. But scholars of eminence have sought to restrict the meaning of the Xoyos iropveias to antenuptial incontinence concealed from the husband, and to exclude adultery. The effect of this view commends itself to the adherents of the Church of Rome, because it places the right to separation between husband and wife, not on a cause supervening after a marriage, which that Church seeks to regard as absolutely indissoluble, but on invalidity in the contract of marriage itself, and which may therefore render the marriage liable to be declared void without impugning its indissoluble character when rightly contracted. The narrower view of the meaning of iropv€las has been maintained by, among others, Dr Dellinger ( First Ages of the Church, ii. 226); but those who will consider the arguments of Professor Conington in reply to Dr Dellinger ( Contemp. Review, May 1869) will probably assign the palm to the English scholar. A more general view points in the same direction. It is quite true that under the Mosaic law antenuptial incontinence was, as was also adultery, punishable with death. But when we consider the effect of adultery not only as a moral fault, but as violating the solemn contract of marriage and vitiating its objects, it is inconceivable that Christ, in employing a term of general import, intended to limit it to one kind, and that the less serious, of incontinence.

Effect of Christianity on the Law of Rome

The modification in the civil law of Rome effected by Justinian under the joint influence of the previous law of Rome and that of Christianity was remarkable. Gibbon has summed up the change effected in the law of Rome with characteristic accuracy: "The Christian princes were the first who specified the just causes of a private divorce; their institutions from Constantine to Justinian appear to fluctuate between the customs of the empire and the wishes of the Church; and the author of the Novels too frequently reforms the jurisprudence of the Code and Pandects." Divorce by mutual consent, hitherto, as we have seen, absolutely free, was prohibited (Nov. 117) except in three cases: (1) when the husband was impotent; (2) when either husband or wife desired to enter a monastery; and (3) when either of them was in captivity for a certain length of time. It is obvious that the two first of these exceptions might well commend themselves to the mind of the Church, the former as being rather a matter of nullity of marriage than of divorce, the latter as admitting the paramount claims of the Church on its adherents, and not inconsistent with the spirit of the words of St Paul himself, who clearly contemplated a separation between husband and wife as allowable in case either of them did not hold the Christian faith (1 Cor. vii. 12). At a later period Justinian placed a further restriction or even prohibition on divorce by consent by enacting that spouses dissolving a marriage by mutual consent should forfeit all their property, and be confined for life in a monastery, which was to receive one-third of the forfeited property, the remaining two-thirds going to the children of the marriage. The cause stated for this remarkable alteration of the law, and the abandonment of the conception of marriage as a civil contract ut non Dei judicium contemnatur (Nov. 134), indicates the influence of the Christian idea of marriage. That influence, however, did not long continue in its full force. The prohibitions of Justinian on divorce by consent were repealed by Justin (Nov. 140), his successor. "He yielded," says Gibbon, "to the prayers of his unhappy subjects, and restored the liberty of divorce by mutual consent; the civilians were unanimous, the theologians were divided, and the ambiguous word which contains the precept of Christ is flexible to any interpretation that the wisdom of a legislature can demand." It was difficult, the enactment stated, "to reconcile those who once came to hate each other, and who, if compelled to live together, frequently attempted each other's lives." Justinian further re-enacted, with some modifications, the power of divorce by a husband or wife against the will of the other. Divorce by a wife was allowed in five cases (Nov. 117): (1) the husband being party or privy to conspiracy against the state; (2) attempting his wife's life, or failing to disclose to her plots against it; (3) attempting to induce his wife to commit adultery; (4) accusing his wife falsely of adultery; (5) taking a woman to live in the house with his wife, or, after warning, frequenting a house in the same town with any woman other than his wife. If a wife divorced her husband for one of these reasons, she recovered her dowry and any property brought into the marriage by her husband for life with reversion to her children, or if there were no children, absolutely. But if she divorced him for any other reason, the provisions of the enactment of Theodosius and Valentinian were to apply. A husband was allowed to divorce his wife for any one of seven reasons: (1) failure to disclose to her husband plots against the state; (2) adultery; (3) attempting or failing to disclose plots against her husband's life; (4) frequenting dinners or balls with other men against her husband's wishes; (5) remaining from home against the wishes of her husband except with her parents; (6) going to the circus, theatre or amphitheatre without the knowledge or contrary to the prohibition of her husband; (7) procuring abortion. If the husband divorced his wife for any one of these reasons he retained the dowry absolutely, or if there were children, with reversion to them. If he divorced her for any other reason, the enactments of Theodosius and Valentinian applied. In any case of a divorce, if the father or mother of either spouse had advanced the dowry and it would be forfeited by an unreasonable divorce, the consent of the father or mother was necessary to render the divorce valid.

Effect of Divorce on Children in the Law of Rome

The custody of the children of divorced parents was dealt with by the Roman law in a liberal manner. A constitution of Diocletian and Maximian left it to the judge to determine in his discretion to which of the parents the children should go. Justinian enacted that divorce should not impair the rights of children either as to inheritance or maintenance. If a wife divorced her husband for good cause, and she remained unmarried, the children were to be in her custody, but to be maintained by the father; but if the mother was in fault, the father obtained the custody. If he was unable, from want of means, to support them, but she was able to do so, she was obliged to take them and support them. It is interesting to compare these provisions as to childern with the practice at present under English law, which in this respect reflects so closely the spirit of the law of Rome.

The Canon Law of Divorce

The canon law of Rome was based on two main principles: (1) That there could be no divorce a vinculo mat y imonii, but only a mensa et thoro. The rule was stated in the most absolute terms: " Quamdiu vivit vir licet adulter sit, licet sodomita, licet flagitiis omnibus coopertus, et ab uxore propter haec scelera derelictus, maritus ejus reputatur, cui alterum vivum accipere non licet" (Caus. 32, Quaest. 7, c. 7). (2) That no divorce could be had at the will of the parties, but only by the sentence of a competent, that is to say, an ecclesiastical, court. In this negation of a right to divorce a vinculo matrimonii lies the broad difference between the doctrines of the Eastern and Western Churches of Christendom. The Greek Church, understanding the words of Christ in the broader sense above mentioned, has always allowed complete divorce with a right to remarry far the cause of adultery. And it is said that the form at least of an anathema of the council of Trent was modified out of respect to difference on the part of the Greek Church (see Pothier 5.6. 21). The papal canon law allowed a divorce a mensa et thoro for six causes: (1) adultery or unnatural offences; (2) impotency; (3) cruelty; (4) infidelity; (5) entering into religion; (6) consanguinity. The Church, however, always assumed to itself the right to grant licences for an absolute divorce; and further, by claiming the power to declare marriages null and void, though professedly this could be done only in cases where the original contract could be said to be void, it was, and is to this day, undoubtedly extended in practice to cases in which it is impossible to suppose the original contract really void, but in which a complete divorce is on other grounds desirable.

ENGLAND]

In England the law of divorce, originally based on the canon law of Rome, underwent some, though little, permanent change at the Reformation, but was profoundly modified by the exercise of the power of the state through legislation. From the canon law was derived the principle that divorce could legally take place only by sentence of the court, and never at the will of the parties. Complete divorce has never been governed by any other principle than this; and in so far as an incomplete divorce has become practicable at the will of the parties, it has been by the intervention of civil tribunals and contrary to the law of the ecclesiastical courts. Those courts adopted as ground for divorce a mensa et thoro the main grounds allowed by Roman canon law, adultery and cruelty (Ayliffe, 22; Co. Lit. 102; I Salk. 162; Godolphin Abridg. 495). The causes of heresy and of entering into religion, if ever they were recognized in England, ceased to exist at the Reformation.

The principles upon which the English ecclesiastical courts proceeded in divorce a mensa et thoro are those which are still in force, and which (with some modification by statutory enactment) have been administered by judicial tribunals down to the present day. The courts by which the ecclesiastical law, and therefore the law of divorce, was administered were, until 1857, the courts of the various dioceses, including that of the archbishop of Canterbury, known as the Court of Arches, and that of the archbishop of York, known as the Consistory Court of York; but by statute a suitor was prevented from taking proceedings in any court except that determined by the residence of the person against whom proceedings were taken (23 Hen. VIII. c. 9). From these courts an appeal lay to delegates appointed in each case by the crown, until the establishment of the judicial committee of the privy council in 1836, when the appeal was given to the crown as advised by that body.

The proof of adultery (to which Isidore in his Book of Etymologies gives the fanciful derivation of " ad alterius thorum") was not by the canon law as received in England restricted by the operation of arbitrary rules. It was never, for example, required, as by the law of Mahomet, that the act should have been actually seen by competent witnesses, nor even that the case should be based on any particular kind of proof. It was recognized that the nature of the offence almost inevitably precluded direct evidence. One rule, however, appears to have commended itself to the framers of the canon law as too general in its application not to be regarded as a principle. The mere confession of the parties was not regarded as a safe ground of conviction; and this rule was formulated by a decretal epistle of Pope Celestine III., and, following it, by the 105th of the Canons of 1604. This rule has now been abrogated; and no doubt it is wiser not to fetter the discretion of the tribunal charged with the responsibility of deciding particular cases, but experience of divorce proceedings tends to confirm the belief that this rule of the canon law was founded on an accurate appreciation of human nature.

Although, therefore, with the above exception, no strict rules of the evidence necessary to establish adultery have ever been established in the English courts, experience has indicated, and in former days judges of the ecclesiastical courts often expressed, the lines upon which such proof may be expected to proceed. It is necessary and sufficient, in general, to prove two things - first the guilty affection towards each other of the persons accused, and, secondly, an opportunity or opportunities of which, if so minded, their passion may have been gratified. It is obvious that any strong proof on either of these points renders strict proof on the other less needful; but when proof on both is afforded, the common sense of a tribunal, acting with a knowledge of human nature, may be trusted to draw the inevitable conclusion.

The definition of cruelty accepted by the ecclesiastical courts as that of the canon law is the same as that which prevails at the present time; and the view of the law taken by the House of Lords in Russell v. Russell (1897 App. Cas. 395) was expressly based on the view of cruelty taken by the authorities of the ecclesiastical law. The best definition by older English writers is probably to be found in Clarke's Praxis (p. 144): "Si maritus fuerit erga uxorem crudelis et ferax ac mortem comminatus et machinatus fuerit, vel earn inhumaniter verbis et verberibus tractaverit, et aliquando venenum loco potus paraverit vel aliquod simile commiserit, propter quod sine periculo vitae cum marito cohabitare aut obsequia conjugalia impendere non audeat. .. consimili etiam causa competit viro contra mulierem." Lord Stowell, probably the greatest master of the civil and canon law who ever sat in an English court of justice, has in one of his most famous judgments ( Evans v. Evans, 1790, Hagg. Consist. 35) echoed the above language in words often quoted, which have constituted the standard exposition of the law to the present day. "In the older cases," he said, "of this sort which I have had the opportunity of looking into, I have observed that the danger of life, limb or health is usually insisted as the ground upon which the court has proceeded to a separation. This doctrine has been repeatedly applied by the court in the cases which have been cited. The court has never been driven off this ground. It has always been jealous of the inconvenience of departing from it, and I have heard no one case cited in which the court has granted a divorce without proof given of a reasonable apprehension of bodily hurt. I say an apprehension, because assuredly the court is not to wait till the hurt is actually done; but the apprehension must be reasonable: it must not be an apprehension arising from an exquisite and diseased sensibility of mind. Petty vexations applied to such a constitution of mind may certainly in time wear out the animal machine, but still they are not cases of legal relief; people must relieve themselves as well as they can by prudent resistance, by calling in the succours of religion and the consolation of friends; but the aid of courts is not to be resorted to in such cases with any effect." The risk of personal danger in cohabitation constituted, therefore, the foundation of legal cruelty. But this does not exclude such conduct as a course of persistent ill-treatment, though not amounting to personal violence, especially if such ill-treatment has in fact caused injury to health. But the person complaining must not be the author of his or her own wrong. If, accordingly, one of the spouses by his or her conduct is really the cause of the conduct complained of, recourse to the court would be had in vain, the true remedy lying in a reformation of the real cause of the disagreement.

In addition to a denial of the charge or charges, the canon law allowed three grounds of answer: (1) Compensatio criminis, a setoff of equal guilt or recrimination. This principle is no doubt derived from the Roman law, and it had the effect of refusing to one guilty spouse the remedy of divorce against the other although equally guilty. It was always accepted in England, although not in other countries, such as France and Scotland, which also followed the canon or civil law. In strictness, recrimination applied to a similar offence having been committed by the party charging that offence. But a decision (1888) of the English courts shows that a wife who had committed adultery could not bring a suit against her husband for cruelty ( Otway v. Otway 13 P.

D. 141). (2) Condonation. If the complaining spouse has, in fact, forgiven the offence complained of, that constitutes a conditional bar to any proceedings. The main and usual evidence of such forgiveness is constituted by a renewal of marital intercourse, and it is difficult - perhaps impossible - to imagine any case in which such intercourse would not be held to establish condonation. But condonation may be proved by other acts, or by words, having regard to the circumstances of each case. Condonation is, however, always presumed to be conditional on future good behaviour, and misconduct even of a different kind revives the former offence. (3) Connivance constitutes a complete answer to any charge. Nor need the husband be the active agent of the misconduct of the wife. Indifference or neglect imputable to a corrupt intention are sufficient. It will be seen presently that modern statute law has gone further in this direction. It is to be added that the connivance need not be of the very act complained of, but may be of an act of a similar kind. A learned judge, recalling the classical anecdote of Maecenas and Galba, said, "A husband is not permitted to say non omnibus dormio." The ecclesiastical courts also considered themselves bound to refuse relief if there was shown to be collusion between the parties. In its primary and most general sense collusion was understood to be an agreement between the parties for the purpose of deceiving the court by false or fictitious evidence; for example, an agreement to commit, or appear to commit, an act of adultery. Collusion, however, is not limited to the imposing of other than genuine evidence on the court. It extends to an agreement to withhold any material evidence; and indeed is carried further, and held to extend to any agreement which may have the effect of concealing the real and complete truth from the court (see Churchward v. Churchward, 1894, p. 161). This doctrine was of considerable importance even in the days when only divorces a mensa et thoro were granted, because at that time the parties were not permitted to separate by consent. At the present day it has become, with regard to divorce a vinculo matrimonii, a rule of greater and of more far-reaching importance.

The canon law as accepted in England, while allowing divorces of the nature and for the causes above mentioned, actively interfered to prevent separation between husband and wife in any other manner. A suit known as a suit for restitution of conjugal rights could be brought to compel cohabitation; and on evidence of the desertion of either spouse, the court ordered a return to the matrimonial home, though it carried no further its authority as to the matrimonial relations within the home. To this suit an agreement between the parties constituted no answer. But an answer was afforded by any conduct which would have supported a decree of divorce a mensa et thoro. It is a question whether, indeed, the ecclesiastical courts would not have gone further, and refused a decree of restitution of conjugal rights on grounds which might appear adequate to justify such refusal, though not sufficient on which to ground a decree of divorce. The view of the court of appeal and the House of Lords has given some colour to this opinion, and certainly the court of appeal has held, although perhaps somewhat hastily, that the effect of a modern statute has been to allow the court to refuse restitution of conjugal rights for causes falling short of what would constitute ground for divorce ( Russell v. Russell, 18 95, p. 3 15).

The ecclesiastical courts provided for the pecuniary rights of the wife by granting to her alimony during the progress of the suit, and a proper allowance after its termination in cases in which she was successful. Such payments were dependent on the pecuniary means, or faculties, as they were termed, of the husband, and were subject to subsequent increase or diminution in proper cases. But the ecclesiastical courts did not deal with the custody of the children of the marriage, it being probably considered that that matter could be determined by the common law rights of the father, or by the intervention of the court of chancery.

The canon law fixed no period of limitation, either in respect of a suit for divorce or for restitution of conjugal rights; but, as regards at least suits for divorce, any substantial delay might lead to the imputation of acquiescence or even condonation. To that extent, at least, the maxim vigilantibus non dormientibus jury subveniunt applied.

It is remarkable that desertion by either party to a marriage, except as giving rise to a suit for restitution, was not treated as an offence by canon law in England. It formed no ground for a suit for divorce, and constituted no answer to such a suit by way of recrimination. It might indeed deprive a husband of his remedy if it amounted to connivance, or perhaps even if it amounted only to culpable neglect.

The canon law, as administered in England, has kept clear the logical distinction which exists between dissolving a marriage and declaring it null and void. The result has been that, in England at least, the two proceedings have never been allowed to pass into one another, and a complete divorce has not been granted on pretence of a cause really one for declaring the marriage void ab initio. But for certain causes the courts were prepared to declare a marriage null and void on the suit of either party. There is, indeed, a distinction to be drawn between a marriage void or only voidable, though in both cases it became the subject of a similar declaration. It was void in the cases of incapacity of the parties to contract it, arising from want of proper age, or consanguinity, or from a previous marriage, or from absence of consent, a state of things which would arise if the marriage were compelled by force or induced by fraud as to the nature of the contract entered into or the personality of the parties. It is to be remarked that, in England at least, the idea of fraud as connected with the solemnization of marriage has been kept within these narrow limits. Fraud of a different kind, such as deception as to the property or position of the husband or wife, or antecedent impurity of the wife, even if resulting in a concealed pregnancy, has not in. England (though the last-mentioned cause has in other countries) been held a ground for the vitiation of a marriage contract. A marriage was voidable, and could be declared void, on the ground of physical incapacity of either spouse, the absence of intercourse between the parties after a sufficient period of opportunity being almost, if not quite, conclusive on this subject.

With regard to one cause of nullity the legislation interfered from consideration, it is said, of a case of special hardship. Before the Marriage Act of 1835 marriages within the prohibited degrees of consanguinity and affinity were only voidable by a decree of the court, and remained valid unless challenged during the lifetime of both the parties. But this act, while providing that no previous marriage between persons within the prohibited degrees should be annulled by a decree of the ecclesiastical court pronounced in a suit depending at the time of the passing of the act, went on to render all such marriages thereaf ter contracted in England "absolutely null and void to all intents and purposes whatever." Another suit was allowed by the ecclesiastical courts which should be mentioned, although its bearing on divorce is indirect. This was the suit for jactitation of marriage, which in the case of any person falsely asserting his or her marriage to another, allowed such person to be put to perpetual silence by an order of the court. This suit, which has been of rare occurrence (though there was an instance, Thompson v. Rourke, in 1892), does not appear to have been used for the purpose of determining the validity of a marriage. The legislature, has, however, in the Legitimacy Declaration Act of 1858, provided a ready means by which the validity of marriages and the legitimacy of children can be determined, and the procedure provided has repeatedly been utilised.

It should be added, as a matter closely akin to the proceedings in the ecclesiastical courts, that the common law took cognizance of one phase of matrimonial relations by allowing an action by the husband against a paramour, known as an action for criminal conversation. In such an action a husband could recover damages estimated according to the loss he was supposed to have sustained by the seduction and loss of his wife, the punishment of the seducer not being altogether excluded from consideration. Although this action was not unfrequently (and indeed, for the purposes of a divorce, necessarily) brought, it was one which naturally was regarded with disfavour.

Effect of the Reformation

Great as was the indirect effect of the Reformation upon the law of divorce in England, the direct effect was small. It might, indeed, have been supposed that the disappearance of the sacramental idea of marriage entertained by the Roman Church would have ushered i ' n the greater freedom of divorce which had been associated with marriage regarded as a civil contract. And to some extent this was the case. It was for some time supposed that the sentences of divorce pronounced by the ecclesiastical courts acquired the effect of allowing remarriage, and such divorces were in some cases granted. In Lord Northampton's case in the reign of Edward VI. the delegates pronounced in favour of a second marriage after a divorce a mensa et thoro. It was, however, finally decided in Foljambe's case, in the 44th year of Elizabeth, that a marriage validly contracted could not be dissolved for any cause. But the growing sense of the right to a complete divorce for adequate cause, when no longer any religious law to the contrary could be validly asserted, in time compelled the discovery of a remedy. The commission appointed by Henry VIII. and Edward VI. to reform the ecclesiastical law drew up the elaborate report known as the Reformatio Legum, and in this they recommended that divorces a mensa et thoro should be abolished, and in their place complete divorce allowed for the causes of adultery, desertion and cruelty. These proposals, however, never became law. In 1669 a private act of parliament was granted in the case of Lord de Roos, and this was followed by another in the case of the duke of Norfolk in 1692. Such acts were, however, rare until the accession of the House of Hanover, only five acts passing before that period. Afterwards their number considerably increased. Between 1715 and 1775 there were sixty such acts, in the next twenty-five years there were seventy-four, and between 1800 and 1850 there were ninety. In 1829 alone there were seven, and in 1830 nine.

The jurisdiction thus assumed by parliament to grant absolute divorces was exercised with great care. The case was fully investigated before a committee of the House of Lords, and not only was the substance of justice so secured, but the House of Lords further required that application to parliament should be preceded by a successful suit in the ecclesiastical courts resulting in a decree of divorce a mensa et thoro, and in the case of a husband being the applicant, a successful action at common law and the recovery of damages against the paramour. In this way, and also, if needful, on its own initiative, the House of Lords provided that there should be no connivance or collusion. Care was also taken that a proper allowance was secured to the wife in cases in which she was not the offending party. This procedure is still pursued in the case of Irish divorces.

It is obvious, however, that the necessity for costly proceedings before the Houses of Parliament imposed great hardship on the mass of the population, and there can be little doubt that this hardship was deeply felt. Repeated proposals were made to parliament with a view to reform of the law, and more than one commission reported on the subject. It is said that the final impetus was given by an address to a prisoner by Mr Justice Maule. The prisoner's wife had deserted him with her paramour, and he married again during her lifetime. He was indicted for bigamy, and convicted, and Mr Justice Maule sentenced him in the following words: - "Prisoner at the bar: You have been convicted of the offence of bigamy, that is to say, of marrying a woman while you had a wife still alive, though it is true she has deserted you and is living in adultery with another man. You have, therefore, committed a crime against the laws of your country, and you have also acted under a very serious misapprehension of the course which you ought to have pursued. You should have gone to the ecclesiastical court and there obtained against your wife a decree a mensa et thoro. You should then have brought an action in the courts of common law and recovered, as no doubt you would have recovered, damages against your wife's paramour. Armed with these decrees, you should have approached the legislature and obtained an act of parliament which would have rendered you free and legally competent to marry the person whom you have taken on yourself to marry with no such sanction. It is quite true that these proceedings would have cost you many hundreds of pounds, whereas you probably have not as many pence. But the law knows no distinction between rich and poor. The sentence of the court upon you, therefore, is that you be imprisoned for one day, which period has already been exceeded, as you have been in custody since the commencement of the assizes." The grave irony of the learned judge was felt to represent truly a state of things wellnigh intolerable, and a reform in the law of divorce was felt to be inevitable. The hour and the man came in 1857, the man in the person of Sir Richard Bethell (afterwards Lord Westbury), then attorney-general.

The Act of 1857. - Probably few measures have been conceived with such consummate skill and knowledge, and few conducted through parliament with such dexterity and determination. The leading opponent of the measure was Mr Gladstone, backed by the zeal of the High Church party and inspired by his own matchless subtlety and resource. But the contest proved to be unequal, and after debates in which every line, almost every word, of the measure was hotly contested, especially in the House of Commons, the measure emerged substantially as it had been introduced. Not the least part of the merit and success of the act of 1857 is due to the skill which, while effecting a great social change, did so with the smallest possible amount of innovation. The act (which came into operation on the 1st of January 1858) embodied two main principles: 1. The constitution of a lay court for the administration of all matters connected with divorce. 2. The transfer to that court, with as little change as possible, of the powers exercised in matrimonial matters by (a) the House of Lords, ( b ) the ecclesiastical courts, (c ) the courts of common law.

The Constitution of the Court

The new court, termed "The. Court for Divorce and Matrimonial Causes," was constituted by the lord chancellor, the chiefs and the senior puisne judges of the three courts of common law, and the judge of the court of probate (which was also established in 18J7 ), but the functions of the court were practically entrusted to the judge of the court of probate, termed the "Judge Ordinary," who thus in matters of probate and divorce became the representative of the former ecclesiastical jurisdiction. The judge ordinary was empowered either to sit alone or with one or more of the other judges to constitute a full court. The parties to a suit obtained the right of trial by jury of all disputed questions of fact; and the rules of evidence of the common law courts were made to apply. An appeal to the full court was given in all matters, which the judge ordinary was enabled to hear sitting alone.

1. To this court were transferred all the powers of the ecclesiastical courts with regard to suits for divorce a mensa et thoro, to which the name was given of suits for "judicial separation," nullity, restitution of conjugal rights, and jactitation of marriage, and in all such proceedings it was expressly enacted (sec. 22 ) that the court should act on principles and rules as nearly as possible conformable to the principles and rules of the ecclesiastical courts. Judicial separation could be obtained by either husband or wife for adultery, or cruelty, or desertion continued for two or more years.

2. There were also transferred to the court powers equivalent to those exercised by the legislature in granting absolute divorce. The husband could obtain a divorce for adultery, the wife could obtain a divorce for adultery coupled with cruelty or desertion for two or more years, and also for incestuous or bigamous adultery, or rape, or unnatural offences. The same conditions as had been required by the legislature were insisted on. A petition for dissolution (sec. 30) was to be dismissed in case of connivance, condonation or collusion; and further, the court had power, though it was not compelled, to dismiss such petition if the petitioner had been guilty of adultery, or if there had been unreasonable delay in presenting or prosecuting the petition, or if the petitioner had been guilty of cruelty or desertion without reasonable excuse, or of wilful neglect or misconduct conducing to the adultery. The exercise of these discretionary powers of the court, just and valuable as they undoubtedly are, has been attended with some difficulty. But the view of the legislature has on the whole been understood to be that the adultery of a petitioner should not constitute a bar to his or her proceeding, if it has been caused by the misconduct of the respondent, and that cruelty should not constitute such a bar unless it has caused or contributed to the misconduct of the respondent. But the court, while regarding its powers as those of a judicial and not an arbitrary discretion, has declined to fetter itself by any fixed rule of interpretation or practice.

It is to be observed that this act assigned a new force to desertion. The ecclesiastical law regarded it only as suggestive of connivance or culpable neglect. But the act of 1857 made it (1) a ground of judicial separation if continued for two years, (2) a ground in part of dissolution of marriage if continued for the same period, (3) a bar, in the discretion of the court, to a petition for dissolution, though it was not made in a similar way any bar to a suit for judicial separation. It is also to be observed that the act was confined to causes of divorce recognized by the ecclesiastical law as administered in England. It did not either extend the causes of a suit for nullity by adding such grounds as antenuptial incontinence, even if accompanied with pregnancy, nor did it borrow from the civil law of Rome either lunacy or crime as grounds for divorce.

Much comment has been made on the different grounds on which divorce is allowed to a husband and to a wife, - it being necessary to prove infidelity in both cases, but a wife being compelled to show either an aggravation of that offence or an addition to it. Opinions probably will always differ whether the two sexes should be placed on an equality in this respect, abstract justice being invoked, and the idea of marriage as a mere contract pointing in one direction, and social considerations in the other. But the reason of the legislature for making the distinction is clear. It is that the wife is entitled to an absolute divorce only if her reconciliation with her husband is neither to be expected nor desired. This was no doubt the view taken by the House of Lords. In 1801 a Mrs Addison claimed an absolute divorce on the ground of her husband's incest with her sister. The matter was long debated, but Lord Thurlow, who appeared in the House of Lords for the last time in order to support the bill, turned the scale by arguing that it was improper that the wife should under such circumstances return to her husband (see Campbell, Lives of the Chancellors, vii. 145). "Why do you," he said, "grant to the husband a divorce for the adultery of the wife? Because he ought not to forgive her, and separation is inevitable. Where the wife cannot forgive, and separation is inevitable by reason of the crime of the husband, the wife is entitled to the like remedy." The act (sec. 32) provided, in case of dissolution, for maintenance of the wife by the husband on principles similar to those recognized by the ecclesiastical courts, and (sec. 45) for the settlement of the property of a guilty wife on her husband or children; but this enactment was imperfect, as provision was made only for a settlement and not for payment of an allowance, and none was made for altering settlements made in view or in consequence of a marriage. The act (sec. 35) provides also in all divorce proceedings, and also in those of nullity, for provision for the custody, maintenance and education of children by the court: provisions of great value, which were unfortunately for some time limited by an erroneous view of the court that the age of the children to which such provisions applied should be considered limited to sixteen. The act of 1857 also transferred to the new court the powers exercised by the common law courts in the action for criminal conversation. It was made obligatory to join an alleged adulterer in the suit, and damages (sec. 33) might be claimed against him, and he might be ordered to pay the cost of the proceedings (sec. 34), the extent depending upon the circumstances of each case.' The act of 1857 in one respect went beyond a transfer of the powers exercised by the ecclesiastical courts or the legislature. It provided (sec. 21) that a wife deserted by her husband might apply to a magistrate in petty sessions and obtain an order which had the effect of protecting her earnings and property, and during the currency of such order of protection a wife was to be in the same position as if she had obtained an order for judicial separation. The effect of this section appears to have been small; but the Summary Jurisdiction (Married Women) Act 1895 has afforded a cheap and speedy remedy to all classes.

The framers of the act of 1857 were careful to avoid offending the scruples of clergymen who disapproved of the complete dissolution of marriage by a lay court. It was provided (secs.

1 In Constantinidi v. Constantinidi and Lance (1903), in which both parties were guilty of misconduct, it was held by Sir Francis Jeune (Lord St Helier) that where a wife has by her misconduct broken up the home (the husband's misconduct not having conduced to the wife's adultery) the court would exercise its discretion in favour of the husband petitioner, and, further, the wife being a rich woman, it was justifiable to give her busband a portion of her income, in order to preserve to him the position he would have occupied as her husband, the broad principle being that a guilty respondent should not be allowed to profit by divorce. But further litigation concerning this case occurred as to the variation of the marriage settlements in favour of .the husband, and the decision of the court of appeal in July 1905 considerably modified the decision of Sir Francis Jeune. - Ed. E. B. 57 and 58) that no clergyman should be compelled to solemnize the marriage of any person whose former marriage had been dissolved on the ground of his or her adultery, but should permit any other clergyman to solemnize the marriage in any church or chapel in which the parties were entitled to be married. It is to be feared that this concession, ample as it appears, has not allayed conscientious objections, which are perhaps from their nature insuperable. The act made no provision as to the name to be borne by a wife after a divorce; and this omission led to litigation in the case of a peer's wife, in Cowley v. Cowley, in which Lady Cowley was allowed to retain her status.

Modifications of the Act of 1857.

Subsequent legislation has made good many of the defects of the act of 1857. In 1859 power was given to the court, after a decree of dissolution or of nullity of marriage, to inquire into the existence of anteand post-nuptial settlements, and to make orders with respect to the property settled either for the benefit of children of the marriage or their parents; and a subsequent act (41 & 42 Vict. c. 19, s. 3) removed a doubt which was entertained whether these powers could be exercised if there were no children of the marriage. In 1860 a very important change was made, having for its object a practical mode of preventing divorces in cases of connivance and collusion or of misconduct of the petitioner. It was provided that a claim of dissolution (a provision afterwards extended to decrees of nullity) should in the first instance be a decree nisi, which should not be made absolute until the expiration of a period then fixed at not less than three, but by subsequent legislation enlarged to not less than six, months. During the interval which elapsed between the decree nisi and such decree being made absolute, power was given to any person to intervene in the suit and show cause why the decree should not be made absolute, by reason of the same having been obtained by collusion, or by reason of material facts not brought before the court; and it was also provided that, at any time before the decree was made absolute, the queen's proctor, if led to suspect that the parties were acting in collusion for the purpose of obtaining a divorce contrary to the justice of the case, might under the direction of the attorney-general intervene and allege such case of collusion. This enactment (extended in the year 1873 to suits for nullity) was ill drawn and unskilfully conceived. The power given to any person whomsoever to intervene is no doubt too wide, and practically has had little or no useful effect as employed by friends or enemies of parties to a suit. The limitation in terms of the express power of the queen's proctor to intervene in cases of collusion was undoubtedly too narrow. But the queen's proctor, or the official by whom that officer was afterwards represented, has in practice availed himself of the general authority given to any person to show cause why a decree nisi should not be made absolute, and has thus been enabled to render such important service to the administration of justice that it is difficult to imagine the due execution of the law of divorce by a court without such assistance. By the Matrimonial Causes Act 1866 power was given to the court to order an allowance to be paid by a guilty husband to a wife on a dissolution of marriage. This act also can hardly be considered to have been drawn with sufficient care, inasmuch as while it provides that if the husband's means diminish, the allowance may be diminished or suspended, it makes no corresponding provision for increase of the allowance if the husband's means increase; nor, apparently, does it permit of an allowance in addition to, but only in substitution for, a settlement. The act makes no provision for allowance to a guilty wife, and it certainly is a serious defect that the power to grant an allowance does not extend to cases of nullity. In 1868 an appeal to the House of Lords was given in cases of decree for dissolution or nullity of marriage.

ENGLAND]

The great changes effected by the Judicature Acts included the court for divorce and matrimonial causes. Under their operation a division of the high court of justice was constituted, under the designation of the probate division and admiralty division, to which was assigned that class of legal administration governed mainly by the principles and practice of the canon and civil law. The division consists of a president, and a justice of the high court, with registrars representing each branch of the jurisdiction. Appeals lie to the court of appeal, and thence to the House of Lords.

In 1884 the legislature interfered to prevent imprisonment being the result of disobedience to an order for restitution of conjugal rights. That mode of enforcing the order of the court was abolished, and the matter was left to a proper adjustment of the pecuniary relations of the husband and wife; and a respondent disobeying such an order was held to be guilty of desertion without reasonable cause, such desertion having further given to it a similar effect to that assigned to desertion for two years or upwards. The effect of this provision has been that the suit for restitution of conjugal rights is most frequently brought for the purpose of shortening the time within which a wife can obtain a decree for dissolution of marriage.

Proceedings in the divorce court have shown the improvement in the law of evidence which has been effected with regard to other legal proceedings. The act of 1857 made an inroad on the former law, which prohibited evidence being given by parties interested in the proceedings, by allowing a petitioner (sec. 43) to be called and examined by order of the court, absolving such petitioner, however, from the necessity of answering any question tending to show that he or she had been guilty of adultery. In the next year power was given to the court to dismiss any person, with whom a party to the suit was alleged to have committed adultery, from the suit if there should not appear to be sufficient evidence against him or her, the object being to allow such person to give evidence; and in 1859 it was provided that, on a petition by a wife .for a divorce on the grounds of cruelty or desertion with adultery, the husband and wife could be competent and compellable witnesses as to the cruelty or desertion. A few years later, however, in 1869, the subject was finally dealt with by repealing all previous rules which limited the powers to give evidence on questions of adultery with the safeguard that no witness in any proceeding can be asked or bound to answer any question tending to show that he or she has been guilty of adultery, unless in the same proceeding such witness shall have given evidence in disproof of his or her alleged adultery. It has been held that the principles of these enactments apply to interrogatories as well as to evidence given in court.

It is a most remarkable omission in the act of 1857, especially when we remember the high legal authority from whom it proceeded, that the act nowhere defines the class of persons with regard to whom the jurisdiction of the court should be exercised. This omission has given rise to a misapprehension of the law which, though now set at rest, prevailed for a considerable period, and has undoubtedly led to the granting of divorce in several cases in which it could not legally be given. It was supposed that the court could grant a dissolution of marriage to all persons who had anything more than a casual and fleeting residence within the jurisdiction of the court; and this view, although its correctness was doubted by Lord Penzance, the judge of the divorce court, was upheld by a majority of the judges of the court of appeal in the case of Niboyet v. Niboyet (4 P. D. 1). It was supposed that such residence gave what was termed a matrimonial domicile. But this view was undoubtedly erroneous as regards dissolution of marriage, although probably correct as regards judicial separation, and the true view is no doubt that indicated with great learning and ability by Lord Watson in a judgment given by him in the privy council in the case of Le Mesurier v. Le Mesurier (1895, App. Cas. 517), that the only true test of jurisdiction for a decree of divorce altering the status of the parties to a marriage is to be found in the domicile of the spouses - that is to say, of the husband, as the domicile of a wife follows that of her husband - at the time of the divorce. Domicile means a person's permanent home, the place at which he resides with no intention of making his home elsewhere, and, if he leaves it, with the intention of returning to it.

It is now also clearly recognized as the law of England that the English courts will not recognize a divorce purporting to be made by a foreign tribunal with regard to persons domiciled in England. For a considerable time doubt appears to have clouded the law on this subject. In a famous case known as Lolley's case, decided in 1812, the judges of England (the point arose in connexion with a criminal charge) unanimously held "that no sentence or act of any foreign country or any state could dissolve an English marriage a vinculo matrimonii for grounds on which it was not liable to be dissolved a vinculo matrimonii in England." This case has been frequently understood as deciding that a marriage celebrated in England cannot be dissolved elsewhere, and on this point the courts of Scotland differ from the view supposed to be taken by the English judges. But the matter has been fully explained in one of the most masterly of Lord Hannen's judgments ( Harvey v. Fairnie, 5. P. D. 154), afterwards upheld by the House of Lords in 1882 (8 App. Cas. 43); and it is now clear that while the parties are domiciled in this country no decree of any foreign court dissolving their marriage will be recognized here, unless it proceed on the grounds on which a divorce may be obtained in this country, and even the exception just mentioned appears to rest rather on reasoning and principle than on the authority of any decided case. This principle received the highest sanction in the prosecution of Earl Russell for bigamy before the House of Lords (1901), in which it was held that, where a divorce had been refused him in England, an American divorce would not relieve a man from the guilt of marrying again.

Summary Proceedings for Separation

The legislature has sought to extend the relief afforded by the courts in matrimonial causes by a procedure fairly to be considered within the reach of all classes. In 1895 an act was passed which re-enacted in an improved form the provisions of an act of 1878 of similar effect. By the act of 1895 power was given to a married woman whose husband (1) has been guilty of an aggravated assault upon her wi


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Bibliography Information
Chisholm, Hugh, General Editor. Entry for 'Divorce'. 1911 Encyclopedia Britanica. https://www.studylight.org/encyclopedias/bri/d/divorce.html. 1910.

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