A History of Matrimonial Institutions, Vol. 3 of 3Howard, George Elliott
History
A History of Matrimonial Institutions, Vol. 3 of 3
Howard, George Elliott
Families; Marriage -- History
A measure of fundamental importance makes its appearance in 1867. By
it the divorce system of Massachusetts is completely reorganized.
Not only is the way opened for presently doing away with separation
from bed and board, but provision is made for suspending final
action in any suit for dissolution of marriage by a device similar
to that adopted in the English statute of 1860. The distinction
between the "decree _nisi_" and the "decree absolute" was then
introduced. "Decrees for divorce from the bond of matrimony may in
the first instance be decrees _nisi_, to become absolute after the
expiration of such time, not being less than six months from the
entry thereof, as the court shall, by general or special orders,
direct. At the expiration of the time assigned, on motion of the
party in whose favor the decree was rendered, which motion may be
entertained by any judge in term or vacation, the decree shall be
made absolute, if the party moving shall have complied with the
orders of the court, and no sufficient cause to the contrary shall
appear." The orders of the court referred to require the person in
whose favor a decree _nisi_ has been rendered to publish at his
own cost, in one or more newspapers, designated by the court, the
fact of granting of the decree together with its terms and such
other notice as the court may direct.[17] It will be observed that
there is no express provision for "intervention," as in England by
a private citizen or the Queen's proctor.[18] The institution of
the decree _nisi_ gave the legislator thereafter a great deal of
trouble. Statute after statute was enacted to alter, extend, or
repeal its provisions. These it would be useless to dwell upon,
even if the import of some of them could readily be understood.[19]
After thirty years of tinkering and experiment, the law now stands
in substance about as it was first made. By the act of May 2, 1893,
all decrees of divorce are in the first instance to be decrees
_nisi_, without further proceedings "to become absolute after the
expiration of six months;" unless the court on the application of
some interested person otherwise orders.[20] The requirement of
publication in the newspapers at the expense of the petitioner is
not retained.
[17] Act of May 9, 1867: _Supp. to Gen. Stat. of the Com. of
Mass., 1860-72_, I, 565, 566. _Cf._ 98 _Mass. Reports_, 408; 104
_ibid._, 567.
[18] See above chap. xi, sec. iii, _d_).
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