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
[Footnote 274: GLANVILLE, _Tractatus_, VI, 17; BRACTON, _De
legibus_, fol. 92, 304. BRITTON, II, 264, seems to say, though
his statement is somewhat confusing, that in case of divorce
_a mensa et thoro_ "if verified or not denied, the wife shall
not recover any dower." Were not that interpretation of the
law in the highest degree improbable, Britton's context might
appear to show that such a divorce worked a complete dissolution
of marriage. "In the recorded cases it is often difficult to
see whether the divorce that is pleaded is a dissolution of
marriage; e. g., Note Book, pl. 690. It is believed however
that _divortium_, standing by itself, generally points to a
divorce [nullification] _a vinculo_, e. g., in Lit. sec.
380."--POLLOCK AND MAITLAND, _op. cit._, II, 392 n. 5. BISHOP,
_Marriage, Divorce, and Separation_, I, §§ 1497, 1498 n. 3,
appears to think that the "effect of a divorce for adultery ...
was to dissolve the marriage" bond, because the guilty woman may
"not be heard upon a claim of dower" (BEAMES, _Glanville_, 133).
But this view is surely wrong, as the researches of POLLOCK AND
MAITLAND have finally established: _op. cit._, II, 372-95. Their
results are thus summarized (373): "If however we can not argue
that a woman was not married because she can not claim dower,
still less can we argue that a union is a marriage because the
issue of it will--or is not a marriage because the issue of it
will not--be capable of inheriting English land."]
[Footnote 275: As by the statute of Westminster, II, c. 34, under
Ed. I.: POLLOCK AND MAITLAND, _op. cit._, II, 392, 393.]
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