Statistics.—The statistics of divorce in England have for some years been regularly published in the volumes of judicial statistics published annually by the Home Office.The number of petitions for divorce (including in the term both divorcea mensa et thoroand divorcea vinculo) for the years from 1858 to 1905 inclusive are as follows:—185832618744691890644185929118754511891632186027218765361892629186123618775511893645186224818786321894652186329818795551895683186429718806151896772186528418815891897781186627918824811898750186729418835611899727186830318846471900698186935118855411901848187035118867081902987187138418876621903914187237418886801904822187341618896541905844It is probably impossible to account for the variations which the above table discloses. It was no doubt natural that the year immediately succeeding the passing of the act which originated facilities for divorcesa vinculoshould exhibit a larger number of divorces than its successors for a considerable period. But there does not appear to be any adequate cause for the comparative increase which seems to have prevailed in the decade between 1878 and 1888, unless it be found in the increase of marriages which culminated in 1873 and 1883, falling after each of those years. The number of marriages again rose high in 1891 and 1892, and this may account for the increased number of divorces in 1896 and the following years. But it may certainly be said with confidence that as compared with the growth of population the number of divorces in England has shown no alarming increase.The total number of petitions in matrimonial causes presented by husbands exceed those presented by wives, but in no marked degree. This excess would seem to be due to the fact that the larger number of petitions for dissolution presented by husbands, owing no doubt to the difference in the law affecting the two sexes, is not entirely counterbalanced by the much larger number of petitions for judicial separation presented by wives. The following figures for various years may be taken as typical:—189518961897189818991905Petitions for Dissolution—Presented by husbands353393414401383429Presented by wives22028026924326223Petitions for Judicial Separation—Presented by husbands432445Presented by wives10696961027887Totals—Presented by husbands357396416405387434Presented by wives326376365345340410Speaking generally, it may be said that about 70% of the petitions presented are successful and result in decrees. This percentage has a tendency, however, to rise.Attempts have been made to ascertain the classes which supply the petitioners for divorce, but this cannot be done with such certainty as to warrant any but the most general conclusions. It may, however, safely be said that while all classes, professions and occupations are represented, it is certainly not those highest in the scale that are the largest contributors. The principles of the act of 1857 have beyond question been justified by the relief required by and afforded to the general community.
Statistics.—The statistics of divorce in England have for some years been regularly published in the volumes of judicial statistics published annually by the Home Office.
The number of petitions for divorce (including in the term both divorcea mensa et thoroand divorcea vinculo) for the years from 1858 to 1905 inclusive are as follows:—
It is probably impossible to account for the variations which the above table discloses. It was no doubt natural that the year immediately succeeding the passing of the act which originated facilities for divorcesa vinculoshould exhibit a larger number of divorces than its successors for a considerable period. But there does not appear to be any adequate cause for the comparative increase which seems to have prevailed in the decade between 1878 and 1888, unless it be found in the increase of marriages which culminated in 1873 and 1883, falling after each of those years. The number of marriages again rose high in 1891 and 1892, and this may account for the increased number of divorces in 1896 and the following years. But it may certainly be said with confidence that as compared with the growth of population the number of divorces in England has shown no alarming increase.
The total number of petitions in matrimonial causes presented by husbands exceed those presented by wives, but in no marked degree. This excess would seem to be due to the fact that the larger number of petitions for dissolution presented by husbands, owing no doubt to the difference in the law affecting the two sexes, is not entirely counterbalanced by the much larger number of petitions for judicial separation presented by wives. The following figures for various years may be taken as typical:—
Speaking generally, it may be said that about 70% of the petitions presented are successful and result in decrees. This percentage has a tendency, however, to rise.
Attempts have been made to ascertain the classes which supply the petitioners for divorce, but this cannot be done with such certainty as to warrant any but the most general conclusions. It may, however, safely be said that while all classes, professions and occupations are represented, it is certainly not those highest in the scale that are the largest contributors. The principles of the act of 1857 have beyond question been justified by the relief required by and afforded to the general community.
Other European Countries
We may now turn to the law of divorce as administered in the other countries of the modern world. On the main question whether marriage is to be considered indissoluble they will be found to range themselves on one side or the other according to the influence upon them of the Church of Rome and its canon law.
InScotlandit has long been the law that marriage can be dissolved at the instance of either party by judicial sentence on the grounds of adultery or of desertion, termed non-adherence, and the spouses could in such case remarry, except with the paramour,—at all events if the paramour was named in the decree (and the name is sometimes omitted for that reason). A divorcea mensa et thorocould also be granted for cruelty. By the Court of Session Act 1830, the jurisdiction in divorce was transferred from a body of commissaries to the court of session.
By the law ofHollandcomplete divorce could be granted by judicial sentence on the grounds of adultery or of wilful and malicious desertion, to which were added unnatural offences and imprisonment for life, and such divorce gave the power of remarriage, except with the person with whom adultery was proved to have been committed, but there would seem to be a doubt whether this power extended to the guilty party (Voet,De divortiis, lit. 24, tit. 2). Divorcea mensa et thorocould be granted on the grounds allowed by the canon law.
The Code ofPrussiaof 1794 contained elaborate provisions which gave great facility of divorce. A complete divorce could be obtained by judicial sentence for the following causes:—(1) Adultery or unnatural offences; and adultery by a husband formed no bar to his obtaining a divorce against his wife for adultery; and even an illicit intimacy, from which a presumption of adultery might arise, was held sufficient for a divorce. (2) Wilful desertion. (3) Obstinate refusal of the rights of marriage, which was considered as equivalent to desertion. (4) Incapacity to perform the duties of marriage, even if arising subsequent to the marriage; and the same effect was assigned to other incurable bodily defects that excited disgust and horror. (5) Lunacy, if after a year there was no reasonable hope of recovery. (6) An attempt on the life of one spouse by the other, or gross and unlawful attack on the honour or personal liberty. (7) Incompatibility of temper and quarrelsome disposition, if rising to the height of endangering life or health. (8) Opprobrious crime for which either spouse has suffered imprisonment, or a knowingly false accusation of such crime by one spouse of the other. (9) If either spouse by unlawful transactions endangers the life, honour, office or trade of the other, or commences an ignominious employment. (10) Change of religion. In addition to these causes, marriages, when there were no children, could be dissolved by mutual consent if there be no reason to suspect levity, precipitation or compulsion; and a judge had also power to dissolve a marriage in cases in which a strongly rooted dislike appeared to him to exist. In all cases of divorce, but sometimes subject to the necessity of obtaining a licence, remarriage was permissible (see Burge,Commentaries on Colonial and Foreign Law, vol. i. 649).
Before 1876 only a divorcea vinculocould be obtained in some of the German states, especially if the petitioner were a Roman Catholic. The only relief afforded was a “perpetual separation.” By the Personal Status Act 1875 perpetual separation orders were abolished and divorce decrees allowed in cases where the petitioners would, under the former law, have been entitled to a perpetual separation order. However, two Drafting Commissions under the act declined to alter the new rule, but under pressure from the Roman Catholic party the Reichstag passed a law introducing a modified separation order, termed “dissolution of the conjugal community” (Aufhebung der ehelichen Gemeinschaft). This order can be converted into a dissolution of the marriage at the option of either party. Under the Civil Code of 1900 a petitioner can obtain a divorce or judicialseparation on “absolute” or “relative” grounds. In the former case if the facts are established the petitioner is entitled to the relief prayed for; in the latter case, it is left to judicial discretion. The absolute grounds are adultery, bigamy, sodomy, an attempt against the petitioner’s life or wilful desertion. The relative grounds are (a) such grave breach of marital duty or dishonourable or immoral conduct as would disturb the marital relation to such an extent that the marriage could not reasonably be expected to continue; (b) insanity, continued for more than three years during the marriage, and of so severe a nature that intellectual community between the parties has ceased and is not likely to be re-established. A divorced wife, if not exclusively the guilty party, may retain her husband’s name; but if exclusively guilty, her former husband may compel her to resume her maiden name.
By the law ofDenmark, according to the Code of King Christian the Fifth, complete divorce could be obtained for incest; for leprosy, whether contracted before or after marriage; for transportation for crime or flight from justice, after three years, though not for crime itself; and for exile not arising from crime, after seven years.
InSwedencomplete divorce is granted by judicial sentence for adultery, and inRussiafor that cause and also for incompatibility of temper (Ayliffe, Par. 49). On the other hand, inSpainmarriage is indissoluble, and the ecclesiastical courts have retained their exclusive cognizance of matrimonial causes. InItalycertain articles of the Civil Code deal with separation, voluntary and judicial, but divorce is not allowed in any form.
InFrancethe law of divorce has had a chequered history. Before the Revolution the Roman canon law prevailed, marriage was considered indissoluble, and only divorcea mensa et thoro, known asla séparation d’habitation, was permitted; though it would appear that in the earliest age of the monarchy divorcea vinculo matrimoniiwas allowed.La séparation d’habitationwas granted at the instance of a wife for cruelty by her husband or false accusation of a capital crime, or for habitual treatment with contempt before the inmates of the house; but a wife could not obtain a separation for adultery by her husband, although he had his remedy in case of adultery by his wife. In every case the sentence of a judicial tribunal, which took precautions against collusion, was necessary. But the Revolution may be said to have swept away marriage among the institutions which it overwhelmed, and by the law of the 20th of September 1792 so great facility was given for divorcea vinculo matrimoniias practically to terminate the obligations of marriage. A reaction came with the Code Napoléon, yet even under that system of law divorce remained comparatively easy. Mutual consent, expressed in the manner and continued for a period specified by the law, was cause for a divorce (the principle of the Roman law being adopted on this point), but such consent could not take place unless the husband was twenty-five years of age and the wife twenty-one, unless they had been married for two years, nor after twenty years of marriage, nor after the wife had completed her forty-fifth year; and further, the approval of the parents of both parties was required. In case of divorce by consent, the law required that a proper agreement should be made for the maintenance of the wife and the custody of the children. A husband could obtain a divorcea vinculo matrimoniifor adultery, but the wife had no such power unless the husband had brought his mistress to the home. Both husband and wife could claim divorce on the ground of outrage, or grievous bodily injury, or condemnation for an infamous crime. If the divorce was for adultery, the erring party could not marry the partner of his or her guilt. A divorcea mensa et thorocould be obtained on the same grounds as a divorcea vinculo, but not by mutual consent; and if the divorcea mensa et thorocontinued in force for three years, the defendant party could claim a divorcea vinculo. On the restoration of royalty in 1816 divorcea vinculowas abolished, and pending suits for divorcea vinculowere converted into suits for separation only.
Divorce in France, after the repeal of the provisions respecting it in the Code Napoléon in 1816, was re-enacted by a law of the 27th of July 1884, the provisions of which were simplified by laws of 1886 and 1907. But a wide departure was made by these laws from the terms of the Code Napoléon. Divorce by consent disappeared, and the following became the causes for which divorce was allowed: (1) Adultery by either party to the marriage at the suit of the other, without, in the case of adultery by the husband, the aggravation of introduction of the concubine into the home required by the Code; (2) violence (excès) or cruelty (sévices); (3)injures graves; and (4)peine afflictive et infamante.Excèsis defined by Locié as “a generic expression comprising all acts tending to compromise the safety of the person, without distinction as to their object or motive, premeditation as well as furious anger, attempts upon life as well as serious woundings.”Sévicesare acts of ill-treatment less grave in character, which, while not endangering life, render existence in common intolerable (Kelly’sFrench Law of Marriage, p. 122).Injures graves, as to which the courts have considered themselves entitled to exercise a wide discretion, have been defined as acts, writings or words which reflect upon the honour or the reputation of the party against whom they are directed. The courts have held that retraction at the trial does not relieve the party from the consequences of aninjure grave, and that publicity is an aggravating but not a necessary element. A letter from one spouse to the other may constitute aninjureand the courts have further held themselves at liberty to consider letters written after divorce proceedings have been commenced.Injures graveshave also been considered to include material injuries, and among these have been classed habitual and groundless refusal of matrimonial rights, communication of disease and refusal to consent to a religious ceremony of marriage. Habitual but not occasional drunkenness has also been held to fall within the definition of aninjure grave.Peine afflictive et infamantesignifies a legal punishment involving corporal confinement and moral degradation.4
In addition to its recognition of full divorce, the French law recognizes separation of two kinds, oneséparation de biensand the otherséparation de corps. The effect ofséparation de biensis merely to put an end to the community of goods between the spouses. It necessarily follows, but may be decreed independently ofséparation de corps. The grounds ofséparation de corpsare the same as those for a divorce; and if aséparation de corpshas existed for three years, it may be turned into a divorce upon the application of either party to the court.
Until 1893 a wifeséparée de corpsobtained only the capacity attaching to a concomitantséparation de biens; that is to say, she recovered the enjoyment and management of her separate property, but could not deal with real property, nor take legal proceedings, without the sanction of her husband or of the court. But by a law of the 6th of February 1893 a wifeséparée de corpsobtains “the full exercise of her civil capacity, so that she shall not need to resort to the authority of her husband or of the court.” In case of reconciliation, the wife returns to the limited capacity of a wifeséparée de biens, and after the prescribed notification of such change of status it becomes binding on third persons.
The provisions of French law with regard to the custody of the children of a dissolved marriage, and with regard to property, do not differ materially from those prescribed by the English acts. The custody of children is given to the party who has obtained the divorce, unless the court, on the application of the family, or theministère public, consider it better, in the interests of the children, that custody should be given to the other party or a third person; but in every case the right of both father and mother to supervise the maintenance and education of the children, and their liability to contribute to their support, are continued.
The law in France as to property on a divorce has been accurately stated as follows:—
“Divorce in France effects a dissolution of the matrimonial régime of property as well as of the marriage itself. The decree appoints a notary, who is charged with the settlement of the pecuniary interests of the parties. By a stereotyped form of procedure the appointment is made invariably for the purpose of liquidatingla communauté ayant existé entre les époux, irrespective of whether the régime really was that of community or another. In the case of aliens, therefore, married under the rule of separate property, it is necessary carefully to set this out in the notarial deed of liquidation, in order to defeat the presumption which might be raised by the wording of the decree that a community really did exist. The party against whom the divorce has been pronounced loses the benefit of all settlements made upon him or her by the other party, either by the marriage contract or since the marriage. On the other hand, the party in whose favour the divorce has been pronounced preserves the benefit of all settlements made in his or her favour by the unsuccessful party. If no such settlements were made, or if those made appear inadequate to ensure the subsistence of the successful party, the court may grant him or her permanent alimony out of the property of the other party, not to exceed one-third of the income, and revocable in case it ceases to be necessary” (Kelly, p. 130).
“Divorce in France effects a dissolution of the matrimonial régime of property as well as of the marriage itself. The decree appoints a notary, who is charged with the settlement of the pecuniary interests of the parties. By a stereotyped form of procedure the appointment is made invariably for the purpose of liquidatingla communauté ayant existé entre les époux, irrespective of whether the régime really was that of community or another. In the case of aliens, therefore, married under the rule of separate property, it is necessary carefully to set this out in the notarial deed of liquidation, in order to defeat the presumption which might be raised by the wording of the decree that a community really did exist. The party against whom the divorce has been pronounced loses the benefit of all settlements made upon him or her by the other party, either by the marriage contract or since the marriage. On the other hand, the party in whose favour the divorce has been pronounced preserves the benefit of all settlements made in his or her favour by the unsuccessful party. If no such settlements were made, or if those made appear inadequate to ensure the subsistence of the successful party, the court may grant him or her permanent alimony out of the property of the other party, not to exceed one-third of the income, and revocable in case it ceases to be necessary” (Kelly, p. 130).
On a divorce both parties are at liberty to remarry. The husband could remarry at once; but the wife (art. 296 of the Code) was only allowed to remarry after an interval of ten months. By the act of 1907, this article was abolished, and the wife allowed to remarry as soon as the judgment or decree granting the divorce has been entered, providing 300 days have elapsed since the first judgment was pronounced. A divorced husband may remarry his divorced wife, but if he does so, he cannot be again divorced, except on the ground of a sentence to apeine afflictive et infamantepassed on one of them since their remarriage. There is, however, this limitation on the power of remarriage of divorced persons, that the party to the marriage against whom the decree has been pronounced is not allowed to marry the person with whom his or her guilt has been established. Such person, however, has no such rights as are recognized in him or her according to English law, and cannot take any part in the proceedings. But his or her name is referred to in the proceedings only by an initial; and French law goes even further in the avoidance of publicity, inasmuch as the publication of divorce proceedings in the press is forbidden, under heavy penalties.
By a law of the 6th of February 1893 French jurisprudence, more complete at least, and perhaps wiser, than English, dealt with a matter previously in controversy, and decided that after a divorce the wife shall resume her maiden name, and may not continue to use the name of her divorced husband; nor may the husband, for business or other purposes, continue to use the name of his wife.
By the law of 1886 the special procedure in divorce previously in force under the Code and under the law of 1884 was abolished, and it was provided that matrimonial causes should be tried according to the ordinary rules of procedure. The action therefore, when brought, follows the methods of procedure common to other civil proceedings. But there still remain certain necessary preliminaries to an action of divorce. A petition must be presented by a petitioner in person to the president of the court sitting in chambers, with the object of a reconciliation being effected. This is known as thepremière comparation. If the petitioner still determines to proceed, there follows theseconde comparation, on which occasion both parties appear before the president. If the president fails to effect a reconciliation, he makes an order permitting the petitioner to proceed, and deals with the matters necessary to be dealt withpendente lite, such matters being (1) separate residence, (2) alimony, (3) possession of personal effects, (4) custody of children. As regards residence, the wife is compelled to adhere during the proceedings to the residence assigned to her, but no similar restriction is placed on the husband. Alimonypendente liteis in the discretion of the court, having regard to the means of the parties, and includes a proper provision for costs. As regards the custody of children, the Code and the law of 1884 gave it to the husband, unless the court otherwise orders, but the law of 1886 leaves the matter wholly in the discretion of the court.
There are certain technical rules of evidence on the trial of a divorce action. It is a general principle of the French law of evidence that documentary evidence is the best evidence, and oral testimony only secondary. In divorce cases adulteryflagrante delictocan be proved by the official certificate of the commissary of police. Letters between the husband and wife are admissible in evidence. As to letters between the parties and third persons, the law, which has been doubtful, now appears to be that the wife may produce only such letters from third parties to her husband as have come into her possession accidentally, and without any ruse or artifice on her part; but the husband may put in evidence any letters written to or by his wife which he has obtained by any, short of criminal, means. If the documents put in evidence are not sufficient to satisfy the court, there follows an investigation by means of witnesses, termed anenquête. A schedule of allegations is drawn up, and a judge, termed ajuge-commissaire, is specially appointed to conduct the inquiry. Relatives and servants, though not competent witnesses in ordinary civil actions, are so in divorce proceedings. Cross petitions may be entered; the substantiation of a cross petition, however, does not have the effect, in some cases given to it by English law, of barring a divorce, but a divorce may be, and often is, granted in favour of and against both partiespour torts réciproques. When a case comes on for trial, it is in the power of the court to order an adjournment for a period not exceeding six months, which is termed atemps d’épreuve, in order to afford an opportunity for reconciliation. It is said, however, that this power is seldom exercised. An appeal may be brought against a decree of divorce within two months; and a decree made on appeal is subject to revision by the court of cassation within two months. Both references to the court of appeal and the court of cassation operate as a stay of execution. A decree must, by the law of 1886, be transcribed on the register of marriages within two months from its date, and failing this transcription, the decree is void. The transcription must be made at the place of celebration of the marriage, or, if the parties are married abroad, at the place where the parties were last domiciled in France. If the parties, after having married abroad, return to France, it has been provided, by a circular of theProcureur de la Républiquein 1887, that the transcription may be made at the place of their actual domicile at the time of action brought, a rule which has been held to apply to the divorce of aliens in France. The effect of transcription does not relate back to the date of the decree.
Opinions may differ as to the relative merits of the English and French law relating to divorce. But it cannot be denied that the French law presents a singularly complete and well-considered system, and one which, obviously with the English system in view, has endeavoured to graft on it provisions supplementing its omissions, and modifying certain of its terms in accordance with the light afforded by experience and the changed feelings of the modern world. The effect of the laws of 1884 and 1886 in France has been great. The act of 1907 dealing with divorce, coupled with that of the 21st of July of the same year dealing with marriage, may also be said to mark an epoch in the laws relating to women. During the five years from 1884 to 1888 the courts granted divorces in 21,064 cases, rejecting applications for divorce in 1524. In addition, there were 12,242 applications for judicial separation, of which 10,739 were granted. A distinguished French writer, the author of a work of singular completeness and accuracy on the judicial system of Great Britain has compared these figures with the corresponding result of the English act of 1857. His conclusion is expressed in these words: “On voit qu’en cinq années nos tribunaux out prononcé trois fois plus de divorces que la haute cour d’Angleterre n’en a prononcé en trente ans. Je n’insiste pas sur les conclusions morales à tirer de ce rapprochement” (Comte de Franqueville,Le Système judiciaire de la Grande-Bretagne, ii. p. 171). It is, however, practically impossible to compare the number of divorces in France and in England with exact justice, because, as will have been seen above, the causes of divorce in France materially exceed those recognized by English law; and the absence in France of any official performing the functions assigned to the king’s proctor in England cannot but have great influence on the number of applications for divorce, as well as on their results.
Opinions may differ as to the relative merits of the English and French law relating to divorce. But it cannot be denied that the French law presents a singularly complete and well-considered system, and one which, obviously with the English system in view, has endeavoured to graft on it provisions supplementing its omissions, and modifying certain of its terms in accordance with the light afforded by experience and the changed feelings of the modern world. The effect of the laws of 1884 and 1886 in France has been great. The act of 1907 dealing with divorce, coupled with that of the 21st of July of the same year dealing with marriage, may also be said to mark an epoch in the laws relating to women. During the five years from 1884 to 1888 the courts granted divorces in 21,064 cases, rejecting applications for divorce in 1524. In addition, there were 12,242 applications for judicial separation, of which 10,739 were granted. A distinguished French writer, the author of a work of singular completeness and accuracy on the judicial system of Great Britain has compared these figures with the corresponding result of the English act of 1857. His conclusion is expressed in these words: “On voit qu’en cinq années nos tribunaux out prononcé trois fois plus de divorces que la haute cour d’Angleterre n’en a prononcé en trente ans. Je n’insiste pas sur les conclusions morales à tirer de ce rapprochement” (Comte de Franqueville,Le Système judiciaire de la Grande-Bretagne, ii. p. 171). It is, however, practically impossible to compare the number of divorces in France and in England with exact justice, because, as will have been seen above, the causes of divorce in France materially exceed those recognized by English law; and the absence in France of any official performing the functions assigned to the king’s proctor in England cannot but have great influence on the number of applications for divorce, as well as on their results.
(St H.)
United States
According to American practice, divorce is the termination by proper legal authority, sometimes legislatively but usually judicially, of a marriage which up to the time of the decree was legal and binding. It is to be distinguished from a decree ofnullity of marriage, which is simply a legal determination that no legal marriage has ever existed between the two parties. It is also to be distinguished from a decree of separation, which permits or commands the parties to live apart, but does not completely and for all purposes sever the marriage tie. The matrimonial law of England, as at the time of the declaration of independence, forms part of the common law of the United States. But as no ecclesiastical courts have ever existed there, the law must be considered to have been inoperative. There is no Federal jurisdiction in divorce, and it is a question for the law of each separate state; and though it is competent to Congress to authorize divorces in the Territories, still it appears that this subject like others is usually left to the territorial legislature. In the different states, and in England, divorces were at first granted by the legislatures, whether directly or by granting special authority to the tribunals to deal with particular cases. This practice fell into general disrepute, and by the constitution of some states such divorces are expressly prohibited.
Upon the subject of divorce in the United States, and, to some extent, in foreign countries, a careful investigation was made by the American Bureau of Labour, and its report covered the years 1867 to 1886; a further report for the period 1887 to 1906 has also been published by the Federal Census Bureau. The number of divorces was in 1886 over 25,000, and in 1906 was over 72,000, about double the number reported for that year from all the rest of the Christian world. As divorce presupposes a legal marriage, the amount of divorce, or the divorce-rate, is best stated as the ratio between the number of divorces decreed during a year and the number of subsisting marriages or married couples. The usual basis is 100,000 married couples. In 1898-1902 the divorce-rate was 200 divorces (400 people) to 100,000 married couples. This is equivalent to more than one divorce annually to each 1400 people. The several states differ in divorce-rate, from South Carolina, with no provision for legal divorce, to Montana and Washington, where the rate is two and a half times the average for the country. In general the rate is about the same in the North as in the South, but greater in the Central states than in the East, and in the Western than in the Central states; but to this rule the New England states, Louisiana, New Mexico and Arizona are exceptions. The New England states have a higher rate than their geographical position would lead one to expect, and the other three, owing doubtless, in part at least, to the influence of the Roman Catholic Church, have a lower rate than the states about them. The several state groups had in 1900 the following divorce-rates per 100,000: South Atlantic, 196; North Atlantic, 200; South Central, 558; North Central, 510; Western, 712. The divorce-rate in the United States increased rapidly and steadily in forty years from 27 in 1867 to 86 in 1906. But distinct tendencies are traceable in different regions. In the North Atlantic group the rate rose by 58%, in the North Central by 158%, in the Western by 223%, in the South Atlantic by 437%, and in the South Central by 685%. The great increase in the South was mainly due to the spread of divorce among the emancipated negroes. Each state determines for itself the causes for which divorce may be granted, and no general statement is therefore possible.
The ground pleaded for a divorce is seldom an index to the motives which caused the suit to be brought. This is determined by the character of the law rather than by the state of mind of the parties; and so far as the individuals are concerned, the ground alleged is thus a cloak rather than a clue or revelation. Still those causes which have been enacted into law by the various state legislatures do indicate the pleas which have been endorsed by the social judgment of the respective communities. In the United States exclusive of Alaska and the recent insular accessions there are forty-nine different jurisdictions in the matter of divorce. Six out of every seven allow divorce for desertion, adultery or cruelty; and of the 945,625 divorces reported with their causes during the twenty years 1887-1906 nearly 78% were granted for some one of these three causes, viz. 39% for desertion, 22% for adultery, and 16% for cruelty. Probably nearly 9% more were for some combination of these causes. Three other grounds for divorce are admitted as legal in many or most American states, viz. imprisonment in 39, habitual drunkenness in 38, and neglect to provide in 22. About 98% of American divorces are granted on some one or more of these six grounds. In general the legislation on the subject of the causes allowed for divorce is most restrictive in the states on the Atlantic coast, from New York to South Carolina inclusive, and is least so in the Western states. The slight expense of obtaining a divorce in many of the states, and the lack of publicity which is given to the suit, are also important reasons for the great number of decrees issued. The importance of the former consideration is reflected in the fact that the divorce-rate for the United States as a whole shows clearly, in its fluctuations, the influences of good and bad times. When times are good and the income of the working and industrial classes likely to be assured, the divorce-rate rises. In periods of industrial depression it falls, fluctuating thus in the same way and probably for the same reason that the marriage-rate in industrial communities fluctuates. In two-thirds of the divorce suits the wife is the plaintiff, and the proportion slightly increased in the forty years. In the Northern states the percentage issued to wives (1887-1906) was 71, while in the Southern states it was only 56. But where both parties desire a decree, and each has a legal ground to urge, a jury will usually listen more favourably to a woman’s suit.
Divorce is probably especially frequent among the native population of the United States, and among these probably more common in the city than in the country. This statement cannot be established absolutely, since statistics afford no means of distinguishing the native from the foreign-born applicants. It is, however, the most obvious reason for explaining the fact that, while in Europe the city divorce-rate is from three to five times as great as that of the surrounding country, the difference in the United States between the two regions is very much less. In other words, the great number of foreigners in American cities probably tends to obscure by a low divorce-rate the high rate of the native population. Divorce is certainly more common in the New England states than in any others on the Atlantic coast north of Florida, and it is not unlikely that wherever the New England families have gone divorce is more frequent than elsewhere. For example, it is much more common in the northern counties of Ohio settled largely from New England than in the southern counties settled largely from the Middle Atlantic states.
There are two statements frequently made regarding divorce in the United States which do not find warrant in the statistics on the subject. The first is, that the real motive for divorce with one or both parties is the desire for marriage to a third person. The second is, that a very large proportion of divorces are granted to persons who move from one jurisdiction to another in order to avail themselves of lax divorce laws. On the first point the American statistics are practically silent, since, in issuing a marriage licence to parties one or both of whom have been previously divorced, no record is generally made of the fact. In Connecticut, however, for a number of years this information was required; and, if the statements were trustworthy, the number of persons remarrying each year was about one-third the total number of persons divorcing, which is probably a rate not widely different from that of widows and widowers of the same age. Foreign figures for Switzerland, Holland and Berlin indicate that in those regions the proportion of the divorced who remarry speedily is about the same as that of widows and widowers. What statistical evidence there is on the subject therefore tends to discredit this popular opinion. The evidence on the second point is more conclusive, and has gone far towards decreasing the demand for a constitutional amendment allowing a federal marriage and divorce law. About four-fifths of all the divorces granted in the United States were issued to parties who were married in the state in which the decree of divorce was later made; and when from the remaining one-fifth are deducted those in which the parties migrated for other reasons than a desire to obtain an easy divorce, the remainder would constitute a very small, almost a negligible, fraction of the total number.
It is difficult, perhaps impossible, to say how far the frequency of divorce in the United States has been or is a social injury; how far it has weakened or undermined the ideal of marriage as a lifelongunion between man and woman. In this respect the question is very like that of illegitimacy; and as the most careful students of the latter subject agree that almost no trustworthy inference regarding the moral condition of a community can be derived from the proportion of illegitimate children born, so one may say regarding the prevalence of divorce that from this fact almost no inferences are warranted regarding the moral or social condition of the population. It is by no means impossible, for example, that the spread of divorce among the negro population in the South marks a step in advance from the condition of largely unregulated and illegal unions characteristic of the race immediately after the war. The prevalence of divorce in the United States among the native population, in urban communities, among the New England element, in the middle classes of society, and among those of the Protestant faith, indicates how closely this social phenomenon is interlaced with much that is characteristic and valuable in American civilization. In this respect, too, the United States perhaps represent the outcome of a tendency which has been at work in Europe at least since the Reformation. Certainly the divorce-rate is increasing in nearly every civilized country. Decrees of nullity of marriage and decrees of separation not absolutely terminating the marriage relation are relatively far less prevalent than they were in the medieval and early modern period, and many persons who under former conditions would have obtained relief from unsatisfactory unions through one or the other of these avenues now resort to divorce. The increasing proportion of the community who have an income sufficient to pay the requisite legal fees is also a factor of great importance. The belief in the family as an institution ordained of God, decreed to continue “till death us do part,” and in its relations typifying and perpetuating many holy religious ideas, probably became weakened in the United States during the 19th century, along with a weakening of other religious conceptions; and it is yet to be determined whether a substitute for these ideas can be developed under the guidance of the motive of social utility or individual desire. In this respect the United States is, as Mr Gladstone once wrote, atribus praerogativa, but one who knows anything of the family and home life of America will not readily despond of the outcome.
The great source of American statistical information is the governmental report of over 1000 pages,A Report on Marriage and Divorce in the United States 1867 to 1886, including an Appendix relating to Marriage and Divorce in Certain Countries of Europe, by Carroll D. Wright, Commissioner of Labour; together with the further report for 1887 to 1906. The statistics contained in the former volume have been analysed and interpreted in W. F. Willcox’sThe Divorce Problem: A Study in Statistics(Columbia University, New York, 1891, 1897). Further interpretations are contained in an article in thePolitical Science Quarterlyfor March 1893, entitled “A Study in Vital Statistics.” The best legal treatise is probably Bishop onMarriage, Divorce, and Judicial Separation. See also J. P. Lichtenberger,Divorce: A Study in Social Causation(New York, 1909).
The great source of American statistical information is the governmental report of over 1000 pages,A Report on Marriage and Divorce in the United States 1867 to 1886, including an Appendix relating to Marriage and Divorce in Certain Countries of Europe, by Carroll D. Wright, Commissioner of Labour; together with the further report for 1887 to 1906. The statistics contained in the former volume have been analysed and interpreted in W. F. Willcox’sThe Divorce Problem: A Study in Statistics(Columbia University, New York, 1891, 1897). Further interpretations are contained in an article in thePolitical Science Quarterlyfor March 1893, entitled “A Study in Vital Statistics.” The best legal treatise is probably Bishop onMarriage, Divorce, and Judicial Separation. See also J. P. Lichtenberger,Divorce: A Study in Social Causation(New York, 1909).
(W. F. W.)
1InConstantinidiv.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 husband 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.2It is to be noted that by a decision of the court of appeal inHarrimanv.Harrimanin 1909, where a wife has been deserted by her husband and has obtained a separation order within two years from the time when the desertion commenced, she loses her right to plead desertion under the Matrimonial Causes Act 1857, and is therefore not entitled to a divorce after two years’ desertion, upon proof of adultery. See alsoDoddv.Dodd, 1906, 22 T. L. R. 484.3In 1909 a Royal Commission was appointed to inquire into the law of divorce, with special reference to the position of the poorer classes.4It is interesting to observe how, according to the latest decisions of the House of Lords, cruelty, according to English law, includes some but not others of the forms of injury for which, under the term ofinjures graves, the French law affords a remedy. It may well be doubted whether the view taken by the minority of the peers inRussellv.Russell, which would have included in the definition of cruelty all, or nearly all, of that which the French law deems eithersévicesorinjures graves, would not have better satisfied both the principles of English jurisprudence and the feelings of modern life.
1InConstantinidiv.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 husband 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.
2It is to be noted that by a decision of the court of appeal inHarrimanv.Harrimanin 1909, where a wife has been deserted by her husband and has obtained a separation order within two years from the time when the desertion commenced, she loses her right to plead desertion under the Matrimonial Causes Act 1857, and is therefore not entitled to a divorce after two years’ desertion, upon proof of adultery. See alsoDoddv.Dodd, 1906, 22 T. L. R. 484.
3In 1909 a Royal Commission was appointed to inquire into the law of divorce, with special reference to the position of the poorer classes.
4It is interesting to observe how, according to the latest decisions of the House of Lords, cruelty, according to English law, includes some but not others of the forms of injury for which, under the term ofinjures graves, the French law affords a remedy. It may well be doubted whether the view taken by the minority of the peers inRussellv.Russell, which would have included in the definition of cruelty all, or nearly all, of that which the French law deems eithersévicesorinjures graves, would not have better satisfied both the principles of English jurisprudence and the feelings of modern life.
DIWANIEH,a small town in Turkish Asia, about 40 m. below Hillah, on both banks of the Euphrates (31° 58′ 47″ N., 44° 58′ 18″ E.), which is here spanned by a floating bridge. Formerly a military post for the control of the Affech territory, and a telegraph station, it was in 1893 made the capital of the sanjak, instead of Hillah, on account of its more strategical position. This transfer of the seat of government represented a step in the development of Turkish control over the central regions of Irak.
DIX, DOROTHEA LYNDE(1802-1887), American philanthropist, was born at Hampden, Maine, on the 4th of April 1802. Her parents were poor and shiftless, and at an early age she was taken into the home in Boston of her grandmother, Dorothea Lynde, wife of Dr Elijah Dix. Here she was reared in a distinctly Puritanical atmosphere. About 1821 she opened a school in Boston, which was patronized by the well-to-do families; and soon afterwards she also began teaching poor and neglected children at home. But her health broke down, and from 1824 to 1830 she was chiefly occupied with the writing of books of devotion and stories for children. HerConversations on Common Things(1824) had reached its sixtieth edition by 1869. In 1831 she established in Boston a model school for girls, and conducted this successfully until 1836, when her health again failed. In 1841 she became interested in the condition of gaols and almshouses, and spent two years in visiting every such institution in Massachusetts, investigating especially the treatment of the pauper insane. Her memorial to the state legislature dealing with the abuses she discovered resulted in more adequate provision being made for the care and treatment of the insane, and she then extended her work into many other states. By 1847 she had travelled from Nova Scotia to the Gulf of Mexico, and had visited 18 state penitentiaries, 300 county gaols and houses of correction, and over 500 almshouses. Her labours resulted in the establishment of insane asylums in twenty states and in Nova Scotia and Newfoundland, and in the founding of many additional gaols and almshouses conducted on a reformed plan. In 1853 she secured more adequate equipment for the life-saving service on Sable Island, then rightly called “the graveyard of ships.” In 1854 she secured the passage by Congress of a bill granting to the states 12,250,000 acres of public lands, to be utilized for the benefit of the insane, deaf, dumb and blind; but the measure was vetoed by President Pierce. After this disappointment she went to England for rest, but at once became interested in the condition of the insane in Scotland, and her report to the home secretary opened the way for sweeping reforms. She extended her work into the Channel Islands, and then to France, Italy, Austria, Greece, Turkey, Russia, Sweden, Norway, Denmark, Holland, Belgium and a part of Germany. Her influence over Arinori Mori, the Japanesechargé d’affairesat Washington, led eventually to the establishment of two asylums for the insane in Japan. At the outbreak of the Civil War she offered her services to the Federal government and was appointed superintendent of women nurses. In this capacity she served throughout the war, without a day’s furlough; and her labours on behalf of defectives were continued after the war. After a lingering illness of six years she died at Trenton, New Jersey, on the 17th of July 1887.