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
By their complete silence on the subject the statutes of Ohio appear
always to have allowed either person entire freedom of remarriage
after divorce. Since 1831 the same liberty has been expressly
granted by the laws of Indiana;[516] except that when the defendant
has been "constructively" summoned without other notice than
publication in a newspaper, the person obtaining a decree of divorce
is not permitted to marry again until the expiration of two years,
during which period the judgment may be opened at the instance of
the defendant.[517] But by the original act of 1818 the offender is
not released from the bonds of matrimony while his former spouse
is living.[518] This restriction is maintained by the statute
of 1824, unless the court in its discretion, "judging from the
circumstances of the case," shall expressly grant a release.[519]
In 1825 the legislature of Illinois required the court in a decree
of absolute divorce to prohibit the offender from remarrying within
two years.[520] After 1827 this provision was dropped;[521] and
at present Illinois, like New Jersey, through the remission of
the penalty for bigamy allows entire freedom in this regard.[522]
Michigan began with a severe rule. The territorial enactment of 1819
forbids the defendant adulterer to wed again until the complainant
be actually dead.[523] This provision was not long retained; and
the existing statute permits the court to decree that the person
against whom any divorce is granted shall not marry again within any
period not exceeding two years.[524]
[516] _Rev. Laws of Ind._ (1831), 214; _Rev. Stat._ (1838), 243;
_ibid._ (1843), 606; _ibid._ (1852), II, 237; _ibid._ (1896), I,
sec. 1048; BURNS, _Ann. Stat._ (1901), I, 1059.
[517] _Laws of Ind._ (1873), 108, 109; _Rev. Stat._ (1896), I,
sec. 1030. This section applies only to parties "constructively"
summoned: Sullivan _v._ Learned, 49 _Ind._, 252. The general
policy of the law is against disturbing divorces granted:
McJunkin _v._ McJunkin, 3 _Ind._, 30; McQuigg _v._ McQuigg, 13
_Ind._, 294.
[518] Act of Jan. 26, 1818: _Laws of Ind._ (1818), 228.
[519] _Rev. Laws of Ind._ (1824), 157.
[520] Act of Jan. 17: _Laws of Ill._ (1825), 169.
[521] The act of June 1, 1827: _Rev. Code_ (1827), 181, allows
the injured person to obtain a dissolution of the marriage
contract; but neither this nor any subsequent statute seems
expressly to forbid the defendant to remarry.
[522] HURD, _Rev. Stat._ (1899), 565.
[523] _Ter. Laws of Mich._, I, 496; see also act of April 12,
1827: _ibid._, II, 363-66. An act of this last date (_ibid._,
II, 543), for the punishment of crime, exempts persons marrying
again after divorce from the pains of bigamy, provided they may
do so by the terms of the decree or by those of the law where the
divorce was granted. The act of June 28, 1832 (_ibid._, III, 931,
932), is silent as to remarriage.
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