The history of divorce in Georgia has already been brought down to 1849, when resort to the assembly was finally forbidden. By the act of the next year specific causes for either kind of divorce are for the first time enumerated. After obtaining the concurrent verdict of two juries a total divorce may be decreed for (1) intermarriage within the Levitical degrees of consanguinity; (2) mental incapacity or (3) impotency at the time of the marriage; (4) force, menace, or duress in obtaining the marriage; (5) pregnancy of the woman at the time of the marriage by another man without the husband's knowledge; (6) adultery in either of the persons after marriage; (7) wilful and continued desertion for the term of three years; (8) conviction of either spouse of an offense involving moral turpitude, under which the offender is sentenced to imprisonment inthe penitentiary for two years or longer. Besides these, certain "discretionary" grounds are approved. In case of cruel treatment or habitual drunkenness on the part of either, the jury in its discretion may determine whether the divorce shall be absolute or limited. A general clause declares that all grounds other than those named in the act shall "only be cause for divorce from bed and board." In case of adultery, desertion, cruel treatment, or intoxication, a decree may not be granted when there is collusion or both parties are guilty of the same offense.[209]At the beginning of the century, the law of 1850, so far as the causes of full divorce and the discretionary grounds are concerned,[210]is still in force; while, in addition, the present statute simply authorizes a separation from bed and board on "any ground which was held sufficient in the English courts prior to the fourth of May, 1784."[211]By the existing constitution the superior court still has jurisdiction; and for total dissolution of wedlock the concurrent verdicts of two juries at different terms of the court are essential to a decree.[212]
The grounds on which marriage may be annulled or dissolved were in 1803 first defined for the region of Alabama by the territorial assembly. The courts having equity jurisdiction were then authorized to grant total divorce for (1) intermarriage within the forbidden degrees; (2) natural impotency of body; (3) adultery; (4) "wilful, continued, and obstinate desertion, for the term of five years." Bigamousmarriages were, of course, void from the beginning. Separation from bed and board was allowed on the sole ground of extreme cruelty in either of the parties; but in neither kind of divorce was a decree permitted where there was proof of collusion.[213]In 1820, the year after the admission of the state to the Union, the circuit courts gained jurisdiction and were given power to render decrees of total divorce, subject to legislative appeal, on the following grounds: I. In favor of the husband: when the wife (1) is "taken in adultery;" (2) has voluntarily left his bed and board for the space of two years with the intention of abandonment; (3) has deserted him and lived in adultery with another man. II. In favor of the wife: when the husband (1) has left her during the space of two years with the intention of desertion; (2) has abandoned her to live in adultery with another woman; (3) when his treatment of her is "so cruel, barbarous, and inhuman as actually to endanger her life."[214]The provisions of this act were considerably modified in 1824;[215]but in 1832 they were restored, except that the period of abandonment for either partner was then fixed at three years.[216]A new cause was sanctioned in 1843, a total divorce being then allowed for pregnancy of the wife by another man at the time of the marriage, if without the husband's knowledge or consent;[217]and habitual drunkenness on the part of either was added to the list in 1870.[218]
The basis of the existing law of Alabama was laid in the act of 1852, although important additions to the causes were subsequently made. The court of chancery now has power to grant a divorce from the bond of wedlock according to thefollowing complex scheme: I. In favor of either spouse: (1) when at the time of the contract the other is "physically and incurably incapacitated from entering into the marriage state;" (2) for adultery; (3) for voluntary abandonment for two years; (4) for imprisonment in any state penitentiary for two years, the sentence being for seven years or longer; (5) for a crime against nature; (6) for "becoming addicted after marriage to habitual drunkenness."[219]II. In favor of the husband: for pregnancy of the wife, as provided in 1843. III. In favor of the wife: "when the husband has committed actual violence on her person, attended with danger to life or health, or when from his conduct there is reasonable apprehension of such violence." The chancellor is further authorized to decree a separation from bed and board for cruelty[220]in either of the consorts, or for any cause which will justify a decree from the bonds of matrimony, if the person applying therefor desires only a partial divorce.[221]
The law of March 10, 1803, beginning the history of divorce legislation for Alabama, applies also to Mississippi during the territorial stage; and, five years after the state was erected, its provisions, so far as they relate to the causes and kinds of divorce, were re-enacted in 1822.[222]In 1840 the time of desertion to warrant a total divorce was shortened from five to three years.[223]Ten years thereafter it was provided that any person already having a separation from bed and board may, by application to the chancery court of thedistrict or the circuit court of the county where he resides, and producing a transcript of the decree, be divorced from the bond of matrimony. For the future the same privilege is extended to each of the parties to a partial divorce when they "have lived separate and apart from each other for the term of four years."[224]By a statute of 1858 this term is reduced to three years; and only those who have thus lived apart after partial separation are now allowed to petition for the entire dissolution of the marriage bond.[225]But in 1860, apparently to meet special cases, a law provides simply for a divorcea vinculowhere the persons, prior to the act, have lived apart in the state four years without collusion.[226]A peculiar cause, a product of the Civil War, appears in 1862. The wife is then allowed a complete divorce when her husband is in the army or navy of the United States or resides in one of the United States in preference to one of the states of the Confederacy.[227]By a statute of 1863 a second marriage is valid when the first spouse has been five years absent; and such spouse is to be presumed dead in any question of alimony arising under the second marriage.[228]In 1867 any citizen marrying out of the state, whose spouse commits adultery before his return to the state, may after such return apply for a total divorce, provided he has not cohabited after discovery of the offense.[229]The causes of separation from bed and board, which had remained unaltered since 1803, were extended in 1857. A partial divorce is then allowed for habitual drunkenness, as well as for extreme cruelty in either person; while the wife is granted the same relief whenever the husband, being of sufficient ability, wantonly and cruelly fails to provide for her support; but a decree for partial separation shall in no case bar the right to full divorce from thebond of wedlock.[230]A very important relaxation in the law takes place in 1871. The two causes of partial divorce just mentioned—habitual drunkenness and cruel treatment—become grounds for total divorce; and the term of desertion is shortened from three to two years.[231]
By the present code of Mississippi, therefore, limited divorce is not authorized. But courts having chancery jurisdiction may decree entire release from the marriage bond to the injured person (1) for natural impotency; (2) adultery, except by collusion or where there is cohabitation after knowledge of the offense; (3) sentence to the penitentiary when there is no pardon before imprisonment begins; (4) wilful continued, and obstinate desertion for two years; (5) habitual drunkenness; (6) "habitual and excessive use of opium, morphine, or other like drug;" (7) habitual cruel and inhuman treatment;[232](8) insanity or idiocy at the time of the marriage, if the party complaining did not then know of the infirmity; (9) previous marriage with some other person; (10) pregnancy of the wife by another man at the time of the marriage, the husband being ignorant of the fact; (11) intermarriage within the degrees of kindred prohibited by law.[233]
The first statute defining the grounds of divorce for Missouri was approved in 1807 by the legislature of Louisiana Territory. Either a full or a partial divorce was then authorized when either person (1) is naturally impotent; (2) has entered into the marriage in violation of a "previous vow;" (3) has committed adultery; or (4) has been guilty of wilful and malicious desertion, without a reasonable cause, for four years. The general court may likewise grant thewife a separation from bed and board when the husband shall either abandon his family or turn her "out of doors, or by cruel and barbarous treatment endanger her life, or offer such indignities to her person as to render her condition intolerable and thereby force her to withdraw from his house or family."[234]This law remained in force until 1833, when "extreme cruelty" and conviction of an "infamous crime" were added as causes warranting either the husband or wife to petition for absolute divorce.[235]The number is raised to seven by the revision of 1835, which is silent as to partial divorce; for "indignities" to the person of either such as already described are now made a legal ground for entire dissolution of marriage.[236]Vagrancy[237]of the husband and habitual drunkenness of either for the space of two years came next in 1845; and four years thereafter the introduction of two more causes completed the full quota of eleven grounds on which total divorce is still allowed by Missouri law. The act of 1849 authorizes a divorce to the man when the woman at the time of the marriage, or when it was solemnized, was pregnant by another person without the intended husband's knowledge; and to the wife, when the man prior to the marriage or its solemnization had been convicted of a felony or infamous crime without the woman's knowing it when the marriage took place. The benefits of this cause may now accrue to both persons; otherwise noessential change in the statute has been made for half a century.[238]
In Florida, since 1828, divorce may be sought only by bill in chancery; and, since 1885, the equity courts have had exclusive jurisdiction, granting only complete dissolution of the marriage bond,[239]although in that state separate maintenance is equivalent to separation from bed and board. The causes now sanctioned are: (1) intermarriage within the forbidden degrees; (2) natural impotence of the defendant; (3) adultery in either party; (4) excessive cruelty; (5) habitual indulgence in violent and ungovernable temper;[240](6) habitual intemperance; (7) wilful, obstinate, and continued desertion for one year; (8) a divorce obtained by the defendant in any other state or country; (9) having a husband band or wife living at the time of the marriage; (10) incurable insanity.
The Louisiana code of 1808 provides for the annulment of marriage on legal grounds; and allows separation from bed and board (1) for adultery of the wife; or (2) for that of the husband "when he has kept his concubine in their common dwelling;" (3) when either has been guilty of excesses, cruel treatment, or outrages toward the other, if the ill-treatment is of such a nature as to render their living together insupportable; (4) on account of a public defamation by one of the married persons toward the other; (5) for abandonment; or (6) an attempt upon the life of the other by either spouse.[241]
In 1827 the "district courts throughout the state and the parish court of New Orleans" were given "exclusive original jurisdiction in cases of divorce," with appeal to the supreme court. They were authorized to grant total divorce (1) for adultery of the wife; or (2) for that of the husband "when he has kept his concubine in the common dwelling, or openly and publicly in any other;" (3) for excesses, cruel treatment, or outrages, as conditioned for separation in 1808; (4) condemnation of either married person to an "ignominious punishment;" (5) abandonment for five years when the offender has "been summoned to return to the common dwelling," as is provided for in cases of separation from bed and board. It is, however, especially declared that, except when the cause is adultery or ignominious punishment, no full divorce shall be granted "unless a judgment of separation from bed and board shall have been previously rendered," and unless two years shall have thereafter expired without reconciliation. But in the two cases excepted above a "judgment of divorce may be granted in the same decree which pronounced the separation from bed and board."[242]The fifth cause approved in 1827 was supplemented by a new ground in 1832. Whenever either spouse is charged with an infamous crime and is a fugitive from justice beyond the state, a total divorce may be claimed by the other, without need of a previous decree of separation, on producing evidence of the actual guilt and flight of the accused.[243]"Habitual intemperance" on the part of either husband or wife was added to the list in 1855;[244]and in 1857 the time which must elapse between the decrees for partial and full divorce was reduced to one year.[245]An "omnibus"clause comes next in 1870, complete dissolution of wedlock being then permitted "for any such misconduct repugnant to the marriage covenant as permanently destroys the happiness of the petitioner;" but it was repealed in 1877.[246]
For the sake of convenience, the present law of Louisiana covering the grounds of divorce—whose evolution was thus completed in 1870—may now be summarized. Absolute divorce, without need of a previous decree of separation, is permitted where the husband or wife may have (1) been sentenced to an infamous punishment; or (2) been guilty of adultery.[247]A limited divorce, which may be followed in each case by a total divorce after one year, is authorized (1) for adultery on the part of either spouse; (2) when the other party has been condemned to an infamous punishment; (3) on account of the habitual intemperance of one of the married persons; (4) excesses, cruel treatment, or outrages of one of them toward the other; (5) for public defamation; (6) for abandonment on the part of one of the married persons; (7) for an attempt of one of them against the life of the other; (8) when the husband or wife has been charged with an infamous offense and shall have fled from justice, on producing proof of the actual guilt or flight.[248]An important modification was made in 1898. The person in whose favor a limited divorce has been rendered may apply and get a full divorcein one year, while the adverse party must wait two years before fore he can secure a similar decree, in the meantime the wife's right to alimony remaining unimpaired.[249]
The divorce legislation of the "Republic of Texas" has remained in force with little modification to the present hour. The district courts still have jurisdiction. By the act of January 6, 1841, a marriage may be declared null and void for impotency; and absolute divorce may be granted as follows: I. In favor of the husband: (1) when the wife is guilty of adultery; or (2) has left his bed and board for three years with the intention of abandonment. II. In favor of the wife: (1) when the husband has left her for three years with like intention; or (2) has abandoned her and lived in adultery with another woman. III. In favor of either spouse for excesses, cruel treatment, or outrages toward the other, if the ill-treatment is of such a nature as to render their living together insupportable.[250]These three groups appear unaltered in the present code; and there is added the following: IV. In favor of either husband or wife, "when the other shall have been convicted, after marriage, of a felony and imprisoned in the state prison;provided, that no suit for divorce shall be sustained" because of such conviction "until twelve months after final judgment," nor "then if the governor shall have pardoned the convict;" and provided also that the conviction has not been obtained on the testimony of either spouse.[251]
The grounds of divorce recognized in the statutes of Arkansas have been in force since 1838. The circuit courts may now grant total or limited divorce for the following causes: (1) when either spouse was at the time of the marriageand still is impotent of body; (2) when either deserts the other and remains absent one year without reasonable cause; (3) when a former spouse was living at the time of the marriage; (4) when either is convicted of felony or other infamous crime; or (5) shall be addicted to habitual drunkenness for the space of one year; or (6) shall be guilty of such cruel and barbarous treatment as to endanger the life of the other; or (7) shall offer such indignities to the person of the other as shall render his or her condition intolerable; (8) when subsequent to the marriage either person has committed adultery.[252]
By act of Congress,[253]certain general laws of Arkansas, including those of divorce, are extended to the Indian Territory; so the causes just enumerated are there in force.[254]Limited divorce does not exist in Oklahoma; but in that territory the district court may grant full dissolution of wedlock (1) when either person had a spouse living at the time of the marriage; (2) for abandonment during one year; (3) for adultery; (4) for impotency; (5) "when the wife at the time of the marriage was pregnant by another than her husband;" (6) for extreme cruelty; (7) for fraudulent contract; (8) for habitual drunkenness; (9) for gross neglect of duty; (10) for conviction and imprisonment in the penitentiary for a felony after marriage.[255]
"Arizona, from 1871-77, in addition to six ample reasons for divorce, had an 'omnibus clause' in operation which is a marvelous piece of legislation." "Whereas," we are told, "in the developments of future events, cases may be presented before the courts falling substantially within the limits of the law, as hereinbefore stated, yet not withinits terms, it is enacted, that whenever the judge who hears a cause for divorce deems the case to be within the reason of the law, within the general mischief the law is intended to remedy, or within what it may be presumed would have been provided against, by the legislature establishing the foregoing causes of divorce had it foreseen the specific case and found language to meet it without including cases not within the same reason, he shall grant the divorce." Well was this called, continues Richberg, "the 'seventh wonder' of Arizona's divorce code."[256]
A later statute, somewhat more cautiously, allows the district court to decree a total divorce (1) when the husband or wife is guilty of excesses, cruel treatment, or outrage toward the other, whether by the use of personal violence or any other means; (2) in favor of the husband when his wife shall have been taken in adultery; or (3) when she has voluntarily left his bed and board for the space of six months with the intention of abandonment; (4) in favor of the wife when the husband has left her for the same time with a like motive; (5) for his habitual intemperance; (6) for his wilful neglect to provide the necessaries or comforts of life during the same period, having sufficient ability, or failing to do so by reason of his idleness, profligacy, or dissipation; or (7) when he shall be taken in adultery; (8) in favor of either spouse when the other has been convicted after marriage of a felony and confined in any prison. Suit on the last-named ground cannot be sustained until sixmonths after final judgment, nor when the husband or wife was convicted on the testimony of the other.[257]This law is superseded by the act of 1903. Absolute divorce may now be granted on complaint of the aggrieved for (1) adultery; (2) physical incapacity; (3) conviction and imprisonment for felony, provided that suit may not be sustained until one year after judgment and that conviction has not been had on the testimony of either spouse; (4) wilful desertion for one year, or for habitual intemperance; (5) excesses, cruel treatment, or outrages, whether by the use of personal violence or any other means; (6) to the wife for the husband's neglect for one year to provide her with common necessaries of life, having the ability, or his failure to do so because of idleness, profligacy, or dissipation; (7) to either for the other's conviction of felony before marriage without the innocent person's knowledge; (8) to the husband when without his knowledge the wife was pregnant by another man at the time of the marriage.[258]
In New Mexico the district courts may grant absolute divorce for (1) abandonment; (2) adultery; (3) impotency; (4) when without the husband's knowledge the wife at the time of the marriage was pregnant by another man; (5) cruel and inhuman treatment; (6) to the wife for the husband's neglect to support; (7) habitual drunkenness; (8) conviction and imprisonment for felony subsequent to the marriage.[259]Separationa mensa et thorodoes not exist; but in the laws of 1884 there is a curious provision, which seems designed, in a truly patriarchal spirit, to soothe domestic ills and check matrimonial transgressions through intervention ofthe local magistrate. One is left in little doubt as to the right ideal of family life, being assured that "the duties and relations that should exist between married persons are the following, to wit: The husband is the head of the family; he, nevertheless, owes fidelity, favor, support, and protection to the wife; he should make her a participant in all the conveniences he enjoys; he should show her the utmost and every attention in cases of sickness, misfortune or accident, and provide for her the necessaries of life according to his condition and ability; and the wife owes fidelity and obedience to the husband; she is obliged to live with him and accompany him to such place as he may deem proper and advantageous to make his residence." So when any difficulty arises on account of failure in any of these things, the injured person may go before the justice of the peace in his "precinct and make complaint demanding judicial action." Then the magistrate "shall forthwith dispatch his compulsory writ directing the party defendant immediately to appear to such complaint; both parties being present, it shall be the duty of the justice to endeavor to effect a reconciliation, the first of which endeavors he shall enter on record upon his docket, affording the parties a reasonable opportunity; but if after having so done, the person making the complaint does not agree, the justice shall then proceed to try the matter in a summary manner, provided always, that the reasons for disagreement are simple, such as non-fulfillment" of the duties above set forth. In "case of conviction he shall cause the delinquent to act as required by the laws of the conjugal relation;" and when there is resistance he "may order that such person be confined in the county jail, there to remain until he comply with those duties by which both the husband and wife were mutually bound." Furthermore, it is especially provided, that when any persons are thus put in jail "for an infraction of duty" and fail to"furnish their own provision," the sheriff may "dispose of their services for their maintenance." Should, however, the trouble "arise from adultery, or cruelty, or ill temper, rendering the life of the consort insecure, the justice ... shall, after due investigation send the case up to the district court which shall take cognizance of and try the same;" and "whenever a temporary separation occurs between husband and wife in order to bring suit before the district court, the justice of the peace will provide how the family shall be cared for, and will immediately report to the probate judge of the county, so that the latter may provide for the care of the minors, their support and education, as also for the wife, in case she be the injured party, during the controversy or until otherwise provided for by the district court."[260]It is not, perhaps, surprising that this whole subject is omitted from the compilation of 1897.
By the code of Porto Rico the district court has jurisdiction. Partial divorce is not recognized; but marriage may be dissolved, on the petition of the aggrieved, for (1) adultery; (2) conviction of felony, which may involve the loss of civil rights; (3) "habitual drunkenness or the continued and excessive use of opium, morphine, or any other narcotic;" (4) cruel treatment or gross injury; (5) abandonment for one year; (6) "absolute, perpetual, and incurable impotence" occurring after marriage; (7) the "attempt of the husband or wife to corrupt their sons or to prostitute their daughters," or connivance of either in the same; (8) the proposal of the husband to prostitute the wife.[261]
The experience of South Carolina is peculiar. After abstaining from any legislation on the subject for two hundred years, that state indulged in a conservative divorce statute in 1872. Hitherto the courts were competent onlyto grant separation from bed and board under the common law. By the act in question they were empowered to pronounce decrees of absolute divorce in favor of either spouse (1) for adultery and (2) for abandonment[262]during the space of two years.[263]But this law was of short duration, being repealed in 1878.[264]South Carolina legal sentiment on the divorce problem is fairly revealed in connection with two important decisions during the century. Commenting on the case of Vaigneuret al.v.Kirk, decided in 1808, Editor Desaussure contrasts the laxity of the marriage laws with the stringency of the rule relating to divorce. "The subject of marriage, and consequently the legitimacy of children, is on the same loose footing in this state that it was in England before" 1753[265]and as "it now is in Scotland. We have no statute regulating marriages, or providing any form for the celebration of them, or for recording them. And they are usually celebrated in any form the parties please, before a clergyman or magistrate." This "remarkable facility of contracting matrimony ... is strongly contrasted with the impracticability of dissolving the contract. No divorce has ever taken place within the state. The legislature has uniformly refused to grant divorces, on the ground that it was improper for the legislative body to exercise judicial powers. And it has as steadily refused to enact any law to authorize the courts of justice to grant divorcesa vinculo matrimonii, on the broad principle that it was a wise policy to shut the door to domestic discord, and to gross immorality in the community."[266]
With this view harmonizes the opinion of Justice Pope in McCreeryv.Davis rendered in 1894. While separation from bed and board—the only form of divorce obtainable in the state—"is a judicial barrier to any attempt to exercise the rights or enforce the duties of the parties affected by the judgment, yet the courts are only too willing to have the parties restored to their originalstatus quo, upon good cause shown. While the remedy is a hard one, and to a certain extent interferes with the operation of the laws of nature, still woman must be protected! After all, an unbending adhesion to the laws of right living has a healthy effect upon the lives of others. If self-denial is thus necessitated, it should not be forgotten that many natures are perfected through its beneficent influence. True philosophy would extract good from every condition.... By art. IV, sec. 15, of our constitution, the courts of common pleas have exclusive jurisdiction in all cases of divorce, and by art. XIV, sec. 5, divorces from the bonds of matrimony shall not be allowed but by the judgment of a court as shall be prescribed by law. Thus the general assembly is denied the power to grant divorces directly, but is permitted to clothe the courts of common pleas with that power. This last they have refused to do by repealing the act of 1872;" and thus "we have the common law restored to us on this subject."[267]
Finally it may be noted that the supreme court of the District of Columbia has exclusive jurisdiction in all applications for either full or partial separation. Until recently a divorce from the bond of wedlock might be granted (1) when either spouse had a husband or wife living at the time of the contract, "unless the former marriage had been lawfully dissolved and no restraint imposed" on further marriage; (2) when the marriage was contracted during thelunacy of either party; (3) when either was matrimonially incapacitated at the time of the marriage; or (4) has since committed adultery; (5) for habitual drunkenness for a period of three years; (6) for cruel treatment endangering the life or health of the complainant; or (7) for wilful desertion and abandonment for two years. A divorce from bed and board was allowed (1) for cruel treatment endangering life or health; or (2) "reasonable apprehension, to the satisfaction of the court, of bodily harm."[268]A new and drastic law was passed in 1901. Hereafter absolute divorce will be granted only for adultery, the guilty person not being allowed to remarry. Legal separation from bed and board may be obtained for (1) drunkenness, (2) cruelty, or (3) desertion. Only residents may bring suit for divorce; and unless the applicant has for three years been abona fideresident, no decree will be granted for a cause occurring outside the District before such residence began.[269]
c)Remarriage, residence, notice, and miscellaneous provisions.—Throughout the century, and especially during the first half, many of the southern states have been conservative, even severe, regarding the liberty of the person offending to remarry after full separation; but in very few cases is any restraint put upon the further marriage of the person in whose favor the decree is granted. The divorce acts passed by the assembly of Virginia sometimes expressly forbid the guilty person to contract further wedlock during the lifetime of the former spouse.[270]The law of 1848, when the marriage bond is dissolved on account of infidelity, authorizes the court in its discretion to allow both parties to remarry or only the injured person, as may seem just.[271]Such substantially is the present law. "In grantinga divorce for adultery, the court may decree that the guilty party shall not marry again; in which case the bond of matrimony shall be deemed not to be dissolved as to any future marriage of such party, or in any prosecution on account thereof. But for good cause shown, so much of any decree as prohibits the guilty party from marrying again, may be revoked and annulled at any time after such decree, by the same court by which it was pronounced."[272]No restraint appears to be put upon the immediate remarriage of persons separated for other causes.
The early statutes and the decrees for full divorce in individual cases passed by the assembly of Maryland, by their silence on the subject, appear to contemplate the further marriage of the persons at pleasure. The law of 1872, however, is somewhat conservative. "In all cases where a divorcea vinculo matrimoniiis decreed for adultery or abandonment, the court may, in its discretion," forbid the guilty party to "contract marriage with any other person during the lifetime" of the injured spouse, the bond of marriage not being dissolved, but remaining in full force with respect to such offender.[273]This restriction is now omitted from the code.[274]In the District of Columbia the guilty person may not remarry except with the former spouse.[275]
Formerly the law of North Carolina was stringent in this regard. The act of 1814 permits the "complainant or innocent person" to "marry again as if he or she had never been married;" leaving us to infer, perhaps, that the defendant was not allowed such liberty.[276]In 1828 it issquarely enacted that "no defendant or party offending, who shall be divorced from the bonds of matrimony ... shall ever be permitted to marry again."[277]This rule stands in sharp contrast with the policy of the later law. First the prohibition was restricted to the lifetime of the aggrieved.[278]Next, in 1869, the term was reduced to two years.[279]From 1871 to 1895 no check whatever was put upon the further marriage of either spouse, whether guilty or innocent;[280]but now in case of wilful desertion the guilty defendant may not rewed in five years, or during the lifetime of the plaintiff, if divorced for the eighth cause above considered.
The Georgia statute approved in 1806 allows remarriage when a contract is nullified under the principles of ecclesiastical law; but denies the privilege to the person whose "improper or criminal conduct" is the cause of an absolute divorce, so long as the innocent consort lives.[281]This rule long remained in force;[282]but under the existing code a rather peculiar procedure is adopted. The jury according to whose final verdict a decree of absolute divorce is granted determines the rights and disabilities of the parties, including the question of remarriage, subject to the revision of the court; but provision is made for subsequent removal of the disabilities thus imposed. On proper application, notice of which must be published in a newspaper for sixty days, with twenty days' personal notification to the other divorced person if still living and residing in the county, the question of granting relief is submitted to a new jury, "who shall hear all thefacts, and if, in their judgment, the interest of the applicant or of society demands the removal of such disabilities," shall so find; and the person relieved shall then be allowed to form a second marriage as if no former contract had ever existed. At the trial the divorced person or any citizen of the county may resist the application; but should no person appear for this purpose, then "the solicitor-general shall represent the state, with full power to resist the same, as in ordinary divorce cases."[283]
By the Tennessee statute of 1799 no restraint is put upon immediate remarriage in any case of divorce, except where the cause is infidelity, when the guilty defendant may not marry the person with whom the crime was committed during the lifetime of the former spouse.[284]This provision still appears unchanged in the code.[285]The offender is dealt with in precisely the same way by the Kentucky law of 1809; and by it also the injured spouse is permitted to marry again only after two years.[286]In 1820 the innocent person is relieved from all restraint;[287]both parties are treated as "single" persons in 1843;[288]and likewise by the present statute, in all cases of divorce, no matter what the cause, guilty and innocent alike are absolutely free to form new marriages whenever it shall please them so to do.[289]The same freedom exists in Arizona, New Mexico, Arkansas, Indian Territory, Texas, West Virginia, and Missouri; although in the last-named state until 1885 the guilty defendant was not permitted to remarry for five years, "unless otherwiseexpressed in the decree of the court."[290]Since 1857, in Mississippi, by a more stringent clause "the decree may provide, in the discretion of the court, that a party against whom a divorce is granted because of adultery shall not be at liberty to marry again;" but the freedom of the successful plaintiff is unrestrained.[291]In 1824 the Alabama assembly in all cases forbade the guilty person to remarry; but this prohibition was removed by an act of February, 1870, which, however, lasted only until April, 1873, when it in turn was repealed. By the existing code the chancellor in making his decree may, according to the evidence and nature of the case, direct whether the party, against whom the decree is rendered, shall be permitted to marry again; and in decrees now or hereafter rendered, when no order is made allowing or disallowing the divorced person to remarry, he may on petition and proper proof allow or disallow the petitioner to form a new marriage.[292]It is constituted bigamy in Oklahoma for either divorced person to remarry within six months after the divorce, or until thirty days after final judgment, if appeal be taken. Every decree of divorce shall recite that it "does not become absolute and take effect until the expiration of six months" from the day when it was rendered.[293]According to the Louisiana law, since 1808—at least until 1888—the wife cannot remarry until ten months after dissolutionof the contract, whether by death, divorce, or decree of nullity.[294]In case of divorce for infidelity the offender may not marry his or her accomplice; and this last provision has been in force since 1827.[295]Under the same conditions as in Louisiana, the woman in Porto Rico may not marry during a period of three hundred and one days after dissolution of the marriage, or until a child is born if she be pregnant at the time of the husband's death.[296]By the criminal code of Florida, apparently, the guilty party may not rewed.[297]
In all of the southern and southwestern states, except Louisiana and, of course, South Carolina, a short term of residence is required to qualify the plaintiff to bring suit. Virginia began with a fairly cautious act in 1848. A definite term is not fixed; but a petition for divorce must be brought in the court of the county, city, or town where one of the parties lives, and when the plaintiff has left the county or other place where the married persons dwelt together, the "suit shall be instituted and heard in the court" held for that same county, if the defendant lives there still. The benefits of the act do not extend to any savebona fidecitizens at the time of petition; nor to any case where the parties have never lived together as citizens and as married persons in the commonwealth; nor to any cause of adultery which shall have occurred in any other state or country, unless the parties at the time of such cause or before it took place were citizens of the state and lived there together as husband and wife.[298]By the present law no suit can be sustained unless one of the persons has been domiciled in the state for at least one year before; and it must be brought either in the countyor corporation where the parties last cohabited, or, at the option of the plaintiff, in that of the defendant, if still a resident of the state; otherwise in the place where the plaintiff dwells.[299]
The same rule as that of the parent state has existed in West Virginia since 1882, when a year's residence of one of the persons instead of mere residence at the time of the filing of the suit was introduced.[300]In Georgia twelve months in the state and six in the county for a divorce of either kind are required.[301]By the laws of Kentucky and Arkansas the term of previous residence for the plaintiff is also one year; and if the cause for divorce arose or existed without the state, he must have been a resident of the state at the time, unless it was also a ground of divorce where it existed or arose. In each of these states "an action for divorce must be brought within five years next after the doing of the act complained of."[302]In Alabama, when the defendant lives outside the state, the plaintiff must have been abona fideresident for one year before bringing the action; or for three years when abandonment is the cause alleged.[303]Since 1822 in Mississippi the term of residence in the state for the applicant has been one year;[304]although, in 1857, a divorce shall be denied when the parties have never lived together as husband and wife in the state; as also for a cause occurring elsewhere, unless prior to its occurrence they have so dwelt together in the commonwealth. This last restriction does not apply to abona fidecitizen who marries abroad and does not discover the cause of divorce until after return to the state; but in case of desertion the term ofbona fideresidence must be three years.[305]An important change was introduced in 1863.It is then sufficient to be a citizen of the state or a resident of it for one year; but the applicant must make affidavit that he has not taken up residence to obtain a divorce.[306]By the existing code the courts of chancery may exercise jurisdiction only (1) when both persons are domiciled in the state when suit is commenced; or (2) when the complainant is so domiciled and the defendant is personally served with process in the state; or (3) when one of the consorts is thus domiciled and one or the other of them an actual resident for one year before action began.[307]
The time of residence for the petitioner is three years in the District of Columbia; and two years in Florida.[308]It is also two years in Tennessee, although the acts complained of were committed out of the state, or the petitioner lived out of the state at the time, and no matter where the defendant resides. A decree of divorce in a foreign state granted to a citizen of Tennessee who has merely temporarily transferred his residence there is void and will not be recognized.[309]In Maryland, since 1842, a divorce will not be granted when the cause occurs outside of the state, unless either the plaintiff or the defendant has resided in the state for the two preceding years.[310]By the North Carolina act of 1814 a stringent rule was adopted, only a citizen resident in thestate for three years being allowed to sue.[311]At present the plaintiff must show that the facts constituting the ground for divorce have existed for at least six months prior to filing the complaint, and that he has been a resident of the state for the preceding two years; and if the wife be plaintiff, she may set forth "that the husband is removing or about to remove his property and effects from the state, whereby she may be disappointed in her alimony."[312]But in case of desertion the term of previous residence is five years. The period of previous residence for the plaintiff is six months in the state and county in Texas;[313]one year within the territory in New Mexico, Arizona, and Oklahoma;[314]while in Missouri it is one year, unless the offense or injury complained of was committed within the state, or when one or both of the persons resided there. In all cases when the proceedings areex parte, the court "shall, before granting the divorce, require proof of the good conduct of the petitioner and be satisfied that he or she is an innocent or injured" person.[315]In Arkansas and Indian Territory the plaintiff must "allege and prove" (1) "residence in the state for one year next before the commencement of the action:" (2) that the cause of divorce occurred or existed in the state, or, if out of the state, either that it was a legal cause there or that the applicant's residence was then in the state; (3) that the cause of divorce occurred or existed within five years beforethe suit began.[316]One year's residence is likewise required in Porto Rico, unless the act complained of was committed in the island or while one of the consorts resided there.[317]
A few of the states under consideration have adopted special provisions governing notice to the defendant. Thus in Louisiana, "when the defendant is absent, or incapable of acting for any cause, an attorney shall be appointed to represent him, against whom, contradictorily, the suit shall be prosecuted."[318]In North Carolina, if personal service cannot be made, the court may order service by publication, as in any other actions.[319]By the law of Tennessee, process is authorized as in chancery cases. If the wife is the petitioner, the suit may be heard and decided without service, either personal or by publication, if the bill was filed and the subpoena placed in the hands of the sheriff of the county in which the suit is instituted three months before the time when the subpœna is returnable; but the officer having the subpœna shall execute it if he can.[320]In New Mexico service of process can be made by publication after obtaining an order from a judge of the supreme court, based on an affidavit showing the present residence of the defendant, if known, or last known place of residence, and efforts made to ascertain the present residence. The order for publication shall direct that a copy of the summons be mailed to the present or last known residence of the defendant, and may direct such other means of bringing the action to the knowledge of the defendant as the judge shall deem proper.[321]Until recently Florida had a still different law. If thedefendant is absent from the state, so that ordinary process cannot be served, or, if served, he cannot be compelled to appear and answer or plead, the court may order a hearing on the bill, a copy of such order to be published in some public newspaper of the state, for the space of three months at least, or for a longer time, if the court shall so direct, or a copy of the bill and order for the hearing, certified by the clerk of the court, shall be actually served upon or delivered to the defendant at least three months before the day fixed for the hearing, or for a longer time, as the court may determine. The present statute, however, directs simply that process be served as in other chancery suits.[322]This is the rule also in Virginia, West Virginia, Maryland, Mississippi, Arkansas, and Indian Territory; likewise in Georgia when the defendant is a non-resident; and in Alabama, where, if the defendant is a non-resident, publication is essential.[323]In the District of Columbia process is according to the usual course of equity and the rules adopted by the court. Missouri requires process as in other civil actions; and this is the law in the remaining states and territories of the group.[324]
The miscellaneous provisions are much the same as in the other parts of the United States. Usually, in case of divorce, the legitimacy of the children is expresslyacknowledged.[325]Sometimes provision is made for trial by jury, as in Georgia, Texas, and North Carolina;[326]or it is carefully forbidden, as in Kentucky;[327]and the law may permit the woman to resume her maiden name, as in Arkansas, Kentucky, Indian Territory, Oklahoma, Mississippi, and the District of Columbia.[328]Furthermore, in the District of Columbia, a disinterested attorney must be assigned to resist the decree in uncontested cases, or in any suit when the court sees fit;[329]and similar laws exist in Louisiana and Kentucky. Arbitration in place of judicial divorce is prohibited in Louisiana;[330]the married persons are allowed to be witnesses in Texas, Oklahoma, North Carolina,[331]and formerly in Florida; and occasionally provision is made for the annulment of the decree by further process before the courts.[332]
d)Alimony, property, and custody of children.—The statutes of these states contain the usual provisions for the protection and support of the wife and children during the suit for divorce; and sometimes the husband is required to furnish money to defray the wife's expenses in the same. The Virginia law authorizes the court in term or the judge in vacation to make an order compelling the "man to pay any sums necessary for the maintenance of the woman andto enable her to carry on the suit, or to prevent him from imposing any restraint on her personal liberty, or to provide for the custody and maintenance of the minor children" during the litigation. In the same way steps may be taken to preserve the estate of the husband, "so that it may be forthcoming to meet any decree," even compelling him to give security to abide by the decision.[333]North Carolina also grants the wife alimonypendente lite; but an order allowing it shall not be made "unless the husband shall have had five days' notice;" and in all cases of application for alimony it is admissible for him to be heard by affidavit in answer to the allegations made by the complainant. If he has abandoned his wife and left the state, or is in parts unknown, or is about to remove or dispose of his property for the purpose of defeating her claims, a notice is not required.[334]Arkansas and Indian Territory allow similar support during the suit, including attorney's fees.[335]By the Louisiana statute, "if the wife who sues for a separation" from bed and board, or for a divorce, "has left or declared her intention to leave the dwelling of her husband, the judge shall assign the house wherein she shall be obliged to dwell until the determination of the suit." She "shall be subject to prove her said residence as often as she may be required to do so, and in case she fails so to do, every proceeding on the separation shall be suspended." She is entitled to alimonypendente lite, if she constantly resides in the house assigned; and during the action, for the preservation of her rights, she may require an inventory and appraisement to be made of the property in the husband's possession and demand an injunction restraining him from disposing of any part thereof. After the commencement of the suit the husbandmay not contract a debt on account of the community, nor sell the immovables belonging to the same; such alienation being void, if made "with the fraudulent view of injuring the rights of the wife." Custody of the children of the marriage, "whose provisional keeping is claimed by both husband and wife," belongs to the husband, whether plaintiff or defendant, "unless there shall be strong reasons to deprive him of it;" but when a separation from bed and board has been decreed, the "children shall be placed under the care of the party who shall have obtained the separation, unless the judge shall, for the greater advantage of the children and with the advice of the family meeting, order that some or all" of them be intrusted to the other spouse. In all cases of full divorce "the minor children shall be placed under the tutorship of the party who shall have obtained" the decree.[336]
Permanent alimony and the custody of the children after dissolution of marriage are generally provided for. Sometimes the wife is granted separate alimony without a decree of divorce, as in Virginia, Florida, Georgia, and Oklahoma.[337]From an early period the North Carolina statutes have been conspicuous for the relief granted to the wife after divorce, or, under certain circumstances, without formal separation. Thus by the act of 1814 the court may grant a woman having a limited divorce for cruelty or abandonment such alimony as the husband's means will admit, not exceeding either one-third of his real or personal estate or a like share of the annual profits of his estate, occupation, or labor.[338]The deserted wife gains still further protection in 1816."Whereas," declares an act of that year, "cases of great hardship often occur, the husband being at liberty to return and squander away the estate of the wife, subsequently obtained;" to remedy the evil it is therefore enacted that in future the decree of separation from bed and board shall have the effect of securing to the wife "any property which she may subsequently obtain, either by her own labor, gift, devise, or operation of law, unless the court shall in their judgment otherwise order."[339]Furthermore, in 1828-29 the courts were authorized to grant the wife separate alimony without divorce "whenever a man shall become an habitual drunkard or spendthrift, wasting his substance to the impoverishment of his family."[340]The present law is conceived in the spirit of these early enactments. In case of separation from bed and board, the amount of alimony is the same as in 1814. Separate maintenance without a divorce is still allowed. "When any husband shall separate himself from his wife and fail to provide her with the necessary subsistence according to his means and condition in life, or if he shall be a drunkard or spendthrift, the wife may apply for a special proceeding to the judge of the superior court for the county in which he resides, to have a reasonable subsistence secured to her and to the children of the marriage." Finally it may be noted that alimony may be decreed to the husband as well as the wife in Virginia and West Virginia.
Measures are taken in nearly every state for the division or other disposal of property after separation or divorce. The North Carolina law is very elaborate. "Every woman who shall be living separate from her husband, either upon a judgment of divorce ... or under a deed of separation, executed by said husband and wife, and registered in the county in which she resides, or whose husband shall have been declared an idiot or a lunatic, shall be deemed and held... a free trader, and shall have power to convey her personal estate and her real estate without the assent of the husband." So also "every woman whose husband shall abandon her, or shall maliciously turn her out of doors, shall be deemed a free trader, so far as to be competent to contract and be contracted with, and to bind her separate property, but the liability of the husband for her reasonable support shall not thereby be impaired, and she shall have power to convey" her real and personal estate without her husband's assent. When a marriage is dissolveda vinculo, each of the parties loses all right to any estate by courtesy or dower, and all right to a year's provision or a distributive share in the personal property of the other, or to administer on the other's estate, and all rights whatsoever in the other's estate gained by settlement in consideration of the marriage. But if a "married woman shall elope with an adulterer, or shall wilfully and without just cause abandon her husband and refuse to live with him, and shall not be living with" him at his death; or if a limited divorce be granted on the husband's petition, "she shall thereby lose all right to dower in the lands and tenements of her husband, and also all right to a year's provision." In such cases the husband may convey his real estate as if he were unmarried, and the wife is thereafter barred of all claims to dower. When the husband is guilty of a similar offense, and his conduct is not condoned by the wife, or in case a partial divorce has been granted on her application, he shall suffer the like penalties.[341]
In Missouri a divorce obtained by the wife is considered in law as the death of the husband, and she is looked uponas his widow; but when at fault she is barred of dower.[342]The guilty wife loses her right of dower also in Tennessee; and there she cannot claim permanent alimony. In the same state, when divorce is for the wife's infidelity, and the woman afterwards cohabits with her paramour, she is made "incapable of alienating, directly or indirectly, any of her lands;" and after her death these are to be distributed according to the rules of intestate inheritance.[343]Dower is barred by grant of permanent alimony in Georgia;[344]and in Louisiana, in case of separation from bed and board, the defendant loses "all the advantages or donations" which the plaintiff "may have conferred by the marriage contract or since," while the latter preserves all those to which he or she would otherwise have been entitled; and these dispositions are to take place even when the advantages and donations were "reciprocally made."[345]