from
Bouvier's Law Dictionary, Revised 6th Ed (1856)
DIVORCE. The dissolution of a marriage contracted between a man and a woman,
by the judgment of a court of competent jurisdiction, or by an act of the
legislature. It is so called from the diversity of the minds of those who
are married; because such as are divorced go each a different way from the
other. Ridley's Civ. & Eccl. Law, pp. 11, 112. Until a decree of divorce be
actually made, neither party can treat the other as sole, even in cases
where the marriage is utterly null and void for some preexisting cause.
Griffiths v Smith, D. C. of Philadelphia, 3 Penn. Law Journal, 151, 153. A
decree of divorce must also be made during the lifetime of both the parties.
After the decease of either the marriage will be deemed as legal in all
respects. Reeves" Dom. Rel. 204; 1 Bl. Com. 440. See Act of Pennsylvania,
March 13, 1815, Sec. 5.
2. Divorces are of two kinds; 1. a vinculo matrimonii, (q.v.) which
dissolves and totally severs the marriage tie; and, 2. a mensa et thoro,
(q.v.) which merely separates the parties.
3.-1. The divorce a vinculo was never granted by the ecclesiastical
law except for the most grave reasons. These, according to Lord Coke, (Co.
Litt. 235, a,) are causa praecontractus, causa metus, causa impotentiae, seu
frigiditatis, causa affinitatis, et causa consanguinitatis. In England such
a divorce bastardizes the issue, and generally speaking, is allowed only on
the ground of some preexisting cause. Reeves' Dom. Rel. 204-5; but sometimes
by act of parliament for a supervenient cause. 1 Bl. Com. 440. When the
marriage was dissolved for canonical causes of impediment, existing previous
to its taking place, it was declared void ab initio.
4. In the United States, divorces a vinculo are granted by the state
legislatures for such causes as may be sufficient to induce the members to
vote in favor of granting them; and they are granted by the courts to which
such jurisdiction is given, for certain causes particularly provided for by
law.
5. In some states, the legislature never grants a divorce until after
the courts have decreed one, and it is still requisite that the legislature
shall act, to make the divorce valid. This is the case in Mississippi. In
some states, as Wisconsin, the legislature cannot grant a divorce. Const.
art. 4, is. 24.
6. The courts in nearly all the states have power to decree divorces a
vinculo, for, first, causes which existed and which were a bar to a lawful
marriage, as, precontract, or the existence of a marriage between one of the
contracting parties and another person, at the time the marriage sought to
be dissolved took place; consanguinity, or that degree of relationship
forbidden by law; affinity in some states, as Vermont, Rev. Stat. tit. 16,
c. 63, s. 1; impotence, (q.v.) idiocy, lunacy, or other mental imbecility,
which renders the party subject to it incapable of making a contract; when
the contract was entered into in consequence of fraud. Secondly, the
marriage may be dissolved by divorce for causes which have arisen since the
formation of the contract, the principal of which are adultery cruelty;
willful and malicious desertion for a period of time specified in the acts of
the several states; to these are added, in some states, conviction of felony
or other infamous crime; Ark. Rev. Stat. c. 50, s. 1, p. 333; being a
fugitive from justice, when charged with an infamous crime. Laws of Lo. Act
of April 2, 1832. In Tennessee the husband may obtain a divorce when the
wife was pregnant at the time of marriage with a child of color; and also
when the wife refuses for two years to follow her husband, who has gone
bona fide to Tennessee to reside. Act of 1819, c. 20, and Act of 1835, c. 26
Carr. Nich. & Comp. 256, 257. In Kentucky and Maine,, where one of the
parties has formed a connexion with certain religionists, whose opinions.
and practices are inconsistent with the marriage duties. And, in some
states, as Rhode Island and Vermont, for neglect and refusal on the part of
the husband (he being of sufficient ability) to provide necessaries for the
subsistence of his wife. In others, habitual drunkenness is a sufficient
cause.
7. In some of the states divorces a mensa et thoro are granted for
cruelty, desertion, and such like causes, while in others the divorce is a
vinculo.
8. When the divorce is prayed for on the ground of adultery, in some
and perhaps in most of the states, it is a good defence, 1st. That the other
party has been guilty of the same offence. 2. That the husband has
prostituted his wife, or connived at her amours. 3. That the offended party
has been reconciled to the other by either express or implied condonation.
(q.v.) 4. That there was no intention to commit adultery, as when the
party, supposing his or her first husband or wife dead, married again. 5.
That the wife was forced or ravished.
9. The effects of a divorce a vinculo on the property of the wife, are
various in the several states. When the divorce is for the adultery or other
criminal acts of the husband, in general the wife's lands are restored to
her; when it is caused by the adultery or other criminal act of the wife,
the husband has in general some qualified right of curtesy to her lands;
when the divorce is caused by some preexisting cause, as consanguinity,
affinity or impotence, in some states, as Maine and Rhode Island, the lands
of the wife are restored to her. 1 Hill. Ab. 51, 2. See 2 Ashm. 455; 5
Blackf. 309. At common law, a divorce a vinculo matrimonii bars the wife of
dower; Bract. lib. ii. cap. 39, Sec. 4; but not a divorce ti mensa et,
thoro, though for the crime of adultery. Yet by Stat. West. 1, 3 Ed. I. c.
84, elopement with an adulterer has this effect. Dyer, 195; Co. Litt. 32, a.
n. 10; 3 P. Wms. 276, 277. If land be given to a man and his wife, and the
heirs of their two bodies begotten, and they are divorced. a vinculo, &c.,
they shall neither of them have this estate, but he barely tenants for life,
notwithstanding the inheritance once vested in them. Co. Litt. 28. If a
lease be made to husband and wife during coverture, and the husband sows
the, land, and afterwards they are divorced a vinculo, &c., the husband
shall have the emblements in that case, for the divorce is the act of law.
Mildmay's Case. As to personalty, the rule of the common law is, if one
marry a woman who has goods, he may give them or sell them at his pleasure.
If they are divorced, the woman shall have the goods back again, unless the
husband has given them away or sold them; for in such case she is without
remedy. If the husband aliened them by collusion, she may aver and prove the
collusion, and thereupon recover the goods from the alience. If one be bound
in an obligation to a feme sole, and then marry her, and afterwards they are
divorced, she may sue her former husband on the obligation, notwithstanding
her action was in suspense during the marriage. And for such things as
belonged to the wife before marriage, if they cannot be known, she could sue
for, after divorce, only in the court Christian, for the action of account
did not lie, because he was not her receiver to account. But for such things
as remain in specie, and may be known, the common law gives her an action of
detinue. 26 Hen. VIII. 1.
10. When a divorce a vinculo takes place, it is, in general, a bar to
dower; but in Connecticut, Illinois, New York, and, it seems, in Michigan,
dower is not barred by a divorce for the fault of the husband. In Kentucky,
when a divorce takes place for the fault of the husband, the wife is
entitled as if he were dead. 1 Hill. Ab. 61, 2.
11.-2. Divorces a mensa et thoro, are a mere separation of the
parties for a time for causes arising since the marriage; they are
pronounced by tribunals of competent jurisdiction. The effects of the
sentence continue for the time it was pronounced, or until the parties are
reconciled. A. divorce a mensa et thoro deprives the husband of no marital
right in respect to the property of the wife. Reeve's Dom. Rel. 204-5. Cro.
Car. 462; but see 2 S. & R. 493. Children born after a divorce a mensa et
thoro are not presumed to be the husband's, unless he afterwards cohabited
with his wife. Bac. Ab. Marriage, &c. E.
12. By the civil law, the child of parents divorced, is to be brought
up by the innocent party, at the expence of the guilty party. Ridley's View,
part 1, ch. 3, sect. 9, cites 8th Collation. Vide, generally, 1 Bl. Com.
440, 441 3 Bl. Com. 94; 4 Vin. Ab. 205; 1 Bro. Civ. Law, 86; Ayl. Parerg.
225; Com. Dig. Baron and Feme, C;-Coop. Justin. 434, et seq.; 6 Toullier,
No. 294, pa. 308; 4 Yeates' Rep. 249; 5 Serg. & R. 375; 9 S. & R. 191, 3;
Gospel of Luke, eh, xvi. v. 18; of Mark, ch. x. vs. 11, 12; of Matthew,
ch. v. 32, ch. xix. v. 9; 1 Corinth. ch. vii. v. 15; Poynt. on Marr. and
Divorce, Index, h.t.; Merl. Rep. h.t.; Clef des Lois Rom. h.t. As to the
effect of the laws of a foreign state, where the divorce was decreed, see
Story's Confl. of Laws, ch. 7, Sec. 200. With regard to the ceremony of
divorce among. the Jews, see 1 Mann. & Gran. 228; C. 39. Eng. C. L. R. 425,
428. And as to divorces among the Romans, see Troplong, de l'Influence du
Christianisme sur le Droit Civil des Romains, ch. 6. p. 205.