DIVORCE. 



DIVORCE. 



694 





Causes," such court to possess all the jurisdiction which the ecclesias- 

 tical courts have exercised in respect of divorces d mensd et thoro, 

 suits of nullity of marriage, restitution of conjugal rights, or jactitation 

 of marriage. Thus the old form of proceeding for a separation from 

 bed and board (d mensd et thoro) is abolished, and for it is substituted 

 the procedure for a " judicial separation," which is, in effect, a severance 

 of the marriage tie, save that it does not enable either of the parties to 

 marry again ; but it places the woman in the same position as a feme 

 sole, enabling her to hold and deal with property wholly free from 

 the control of her husband ; and in the case of the man, relieves him 

 from all obligation to support his wife, and frees him from the possi- 

 bility of having a spurious issue palmed upon him. But this court is 

 armed with further power : it can absolutely separate man and wife so 

 as to enable both of them to marry again. It can make provision for 

 the injured wife according to the means of the guilty husband, by the 

 name of " alimony." It can allow damages, if asked for, against the 

 adulterer, and order him to pay the costs of the proceedings. It can, 

 moreover, by the amending Act (22 & 23 Viet. c. 61 ), direct the cus- 

 tody of the children, and make such provision for the children of the 

 marriage or their respective parents, out of any property which is the 

 subject of ante- or post-nuptial settlement, as to the court shall seem 

 fit. Thus the indissolubility of marriage is no longer maintained by 

 the law of England. It is no longer necessary to resort to the legis- 

 lature for a special Act of Parliament, preceded by a suit in the Eccle- 

 siastical Court for a separation a mensd et thoro, and an action against 

 the adulterer for damages at common law, to obtain a divorce ; but the 

 wronged party may now at once, at no great cost, and with little delay, 

 obtain relief from one of the most grievous evils of social life. It 

 must, however, be said, that the wife cannot obtain a dissolution of her 

 marriage (so as to enable her to marry again), unless the adultery of 

 her husband is coupled with desertion of her for two years and up- 

 wards without reasonable cause, or with gross cruelty, or with bigamy, 

 and some revolting offences ; whereas the husband may obtain a divorce 

 upon proof of his wife's adultery alone. In no case, however, will a 

 divorce be granted if there has been collusion or connivance between 

 the husband and wife with a view to obtaining a decree of the court. 

 Nullity of marriage, although dealt with by the same tribunal as 

 divorce, is distinct in its nature : it does not involve the dissolution of 

 a marriage ; but the object sought in such a proceeding is, an authori- 

 tative declaration that there never was any legal marriage between the 

 parties, that it is null and void ab initio. The grounds of such a 

 decree may be physical or mental incapacity to engage in such a con- 

 tract, a previous marriage, consanguinity or affinity (in which is 

 included marriage with a deceased wife's sister or husband's brother) ; 

 also force, or fraud, or duresse to procure the marriage ; also error 

 de ptriond, as where a person intending to marry one individual is 

 actually married to another. Proceedings for restitution of conjugal 

 rights may assume the shape of a suit for judicial separation, or even 

 for a dissolution of marriage. The prayer for a direction to return to 

 cohabitation may be met by the answer, that to do so would be dan- 

 gerous to health or safety, or that adultery has been committed ; either 

 of which, if established, would justify the withdrawal from cohabita- 

 tion : and in the one case, a decree of judicial separation would follow ; 

 and in the other, that of a dissolution of marriage. 



Such is a brief summary of the change made in the matrimonial law 

 of England. Scotland still retains its own peculiar laws on this sub- 

 ject ; and Ireland is not as yet affected by the alteration of the law of 

 England. And since so great an innovation has been introduced, it 

 may not be out of place to .notice the light in which the contract of 

 marriage hag been viewed by ourselves and some other nations. 



From the curious document preserved by Selden (' Uxor Ebraica,' 

 c. xxx., vol. iii., 845, folio ed. of his works), whereby John de Cameys, 

 in the reign of Edward I., transferred his wife and her property to 

 William Paynel ; and also, from the reference to the laws of Howel the 

 Good, at the end of this article, it would seem that, in the early periods 

 of English law, a divorce might be had by mutual consent ; but all 

 trace of such a custom is lost. 



By the common law of England marriage was a civil contract, and the 

 ordinary courts of justice asserted their jurisdiction over this as well 

 aa every other description of contract. At length, the rite of mar- 

 riage having been elevated to the dignity of a sacrament by Pope 

 Innocent III., 1215, the ecclesiastical courts asserted the sole juris- 

 diction over it. And notwithstanding it was divested of that high 

 character at the Reformation, it still remained in the eye of the law a 

 religious contract, necessary to be celebrated by some formal rites 

 wherein the priest was to officiate ; and generally, except under special 

 exemption, necessarily within the walls of a sacred edifice; wherefore 

 it was that the ecclesiastical courts treated the matrimonial tie with 

 such reverence, and the law of the land deemed the contract indis- 

 soluble, thus rendering it necessary to resort to the legislature for a 

 special act of parliament to set aside a marriage. It was not, however, 

 without doubt and much discussion that the opinion that mnrriago 

 wan indissoluble was arrived at by the early reformers. In the reign 

 'if Edward VI., Parr, the Marquis of Northampton, obtained a divorce 

 in the Ecclesiastical Court by reason of the adultery of his wife, a 

 : which Cranmer presided) was appointed to inquire 

 whether he could marry again ; but before a decision was given he 

 did marry again. The commissioners afterwards answered, " That the 



ABT3 ASD SCI. DIV. VOL. III. 



bond of wedlock being broken by the mere act of infidelity, the 

 second marriage was lawful." The Marquis, however, applied for and 

 obtained au act of parliament confirming the marriage. But the act 

 was repealed in the following reign (that of Mary). In the following 

 reign of Elizabeth was renewed the endeavour (which had failed in the 

 reign of Edward VI.) to frame such laws ecclesiastical as should be 

 thought convenient, under the name of " Reformatio legum ; " one of 

 those laws, " de adulteriis et divortiis," allowed a marriage to be dis- 

 solved by the ecclesiastical judge for adultery, desertion, long absence, 

 mortal enmities (shown in overt acts, such as threatening life), lasting 

 cruelty of a husband towards his wife. In all these cases the innocent 

 party, whether wife or husband, might many again. Severe penalties 

 were denounced against adulterers, and the divorce d mensd et thoro 

 was abolished, but this code of laws never received royal confirmation, 

 and therefore did not become law, and the question whether a com- 

 plete divorce could be decreed by any strictly legal tribunal remained 

 undetermined until the year 1571, when it was decided in the " Star 

 Chamber " (a tribunal, although most arbitrary and despotic, still of 

 binding authority), in a case known as " Foljambe's case," that the 

 second marriage of a husband divorced from his first wife by reason of 

 her incontinency, was still a void marriage, because the first divorce 

 was only d mensd et thoro, and not d vincido matrimonii, (that is, the 

 bond of marriage), reverting to the old ecclesiastical theory that a 

 marriage could not be dissolved by the spiritual court, which alone 

 had cognisance of the matter. In 1603, under the auspices of James 

 I., the canons which still regulate and bind the clergy were enunciated. 

 In one of them (the 107th) it is declared that parties separated d mentd 

 et thoro shall not during each other's life contract matrimony with 

 another person, consequently any clergyman of the established church 

 would, apart from any other legal consequences, have been amenable to 

 ecclesiastical censure and punishment had he knowingly performed 

 the ceremony of marriage where either of the parties to such marriage 

 had been separated by a mere divorce a mensd et thoro. 



To satisfy the scruples of the clergy, a proviso has been inserted in 

 the act (20 & 21 Viet., c. 85, s. 57) that " no clergyman in holy orders 

 of the United Church of England and Ireland shall be compelled to 

 solemnise the marriage of any person whose former marriage may 

 have been dissolved on the ground of his or her adultery, or shall be 

 liable to any suit, &c., for refusing to solemnise the marriage of any 

 such person." The next section provides that in the case of any 

 minister's refusal any other minister may perform the service. 



In the reign of Charles II., a loose and profligate period of our 

 history, the aid of the legislature was sought to enable Lord Roos, 

 who had obtained a divorced mened et thoro, to marry again. Although 

 the bill was strongly opposed, it passed, but it is said by the historians 

 (Burnett among others), that there was a strong political bias in its 

 favour with reference to the king's being divorced and re-married, 

 with a view to bar the Duke of York's succession to the crown. 

 Here, however, the legislature did not dissolve the marriage, but about 

 thirty years afterwards an actual dissolution of the nuptial tie was 

 enacted in the case of the Countess of Macclesfield, the reputed, if not 

 the actual, mother of Savage the poet. Three years after this followed 

 the Duke of Norfolk's case ; and immediately afterwards that of a Mr. 

 Box. Thus the privilege was no longer confined .to those in high 

 places ; the right to obtain an act " to dissolve a marriage and to enable 

 the petitioner to marry again " (that is if the husband), became esta- 

 blished, provided a person were rich enough to bear the costs of the 

 application. 



The causes admitted by various codes of laws as grounds for the 

 suspension or dissolution of the contract of marriage, as well as the 

 description of the tribunal which had, or in some degree has, juris- 

 diction over the proceedings, are various, and indicative of the degree 

 of civilisation of the nations among whom they prevailed. 



According to the law of Moses (Deut. xxiv. 1), " When a man hath 

 taken a wife, and married her, and it come to pass that she find no 

 favour in his eyes, because he hath found some uncleanness in her : 

 then let him write her a bill of divorcement, and give it in her hand, 

 and send her out of his house." After ninety days, the wife might 

 marry again ; but after she had contracted a second marriage, though 

 she should be again divorced, her former husband might not take her 

 to be his wife. The form of a Jewish bill of divorcement is given by 

 Selden, ' Uxor Ebraica,' lib. iii., ch. 24 ; and see Levi's ' Ceremonies of 

 the Jews,' p. 146. 



As the customs of Oriental nations do not change, we may conclude 

 that the usages in the matter of divorce now existing in Arabia are the 

 same, or nearly so, as when Mohammed endeavoured to reform them 

 among the tribes for which he legislated. An Arab may divorce his 

 wife on the slightest occasion : he has only to say to her, " Thou art 

 divorced," and she becomes so. So easy and so common is this prac- 

 tice, that Burckhardt assures us that he has seen Arabs not more than 

 45 years of age who were known to have had 50 wives ; yet the Arabs 

 have rarely more than one wife at a time. 



By the Mohammedan law, a man may divorce his wife orally and 

 without any ceremony ; when this is done, he pays her a portion, 

 generally one-third of her dowry. He may divorce her twice, and take 

 her again without her consent ; but if he divorce her a third time, or 

 put her away by a triple divorce conveyed in the same sentence, he 

 cannot receive her again until she has been married and divorced 



Q4 



