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; wilful 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 hushand 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 hushand, who
has gone bonafide 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 hushand (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 hushand 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 hushand 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 hushand, 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 bushand 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, §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 hushand and wife during coverture, and the hushand sows
the, land, and afterwards they are divorced a vinculo, &c., the
hushand 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 hushand has given them away or sold them; for in
such case she is without remedy. If the hushand 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 hushand 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 hushand.
In Kentucky, when a divorce takes place for the fault of the hushand,
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 hushand 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 hushand'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. 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, §200.
With regard to the ceremony of divorce among. theJews, 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.
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