A History of Matrimonial Institutions, Vol. 2 of 3Howard, George Elliott
History
A History of Matrimonial Institutions, Vol. 2 of 3
Howard, George Elliott
Families; Marriage -- History
_b_) _Void and voidable contracts._--It is a striking illustration
of the completeness with which in social questions the English mind
was dominated by theological modes of thought that no change in the
law of divorce was effected until the present century. Yet there
was crying need of reform. The rigid tightening of the bonds of
wedlock seems to have produced its natural fruit. Immorality grew
apace.[271] The lot of the married woman became harder even than
before the Reformation. To the anomalies of the mediæval system,
some of which survived, were added others not less harmful. Chief
among them were those arising in the dualism, amounting sometimes
to antagonism, subsisting between the civil and the spiritual
law. Theoretically, of course, the temporal judge had no divorce
competence at all. Still where dower or inheritance was involved a
policy had to be defined. "Ultimately the common lawyers came to
the doctrine that while the divorce _a vinculo matrimonii_ did, the
divorce _a mensa et toro_ did not deprive the widow of dower, even
though she was the guilty person."[272] Such was the law onward from
the days of Edward III.[273] Earlier, according to Glanville, and
apparently also according to Bracton, the woman "divorced for her
misconduct can claim no dower;"[274] and even at a time when she was
not deprived of dower through the fact of divorce, she might have
the right to claim it taken away as a punishment for her crime, if
she "eloped and abode" with her paramour.[275]
[Footnote 271: _Cf._ JEAFFRESON, _op. cit._, II, 339, 340.]
[Footnote 272: POLLOCK AND MAITLAND, _Hist. of Eng. Law_, II,
392: _Co. Lit._ , 32_a_, 33_b_, 235_a_.]
[Footnote 273: _Year Book_, 10 Edw. III., fol. 35 (Trin. pl. 24):
POLLOCK AND MAITLAND, _op. cit._, II, 392.]
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