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
To some extent the evil of lax administration of the divorce laws is
exaggerated by popular opinion. In the main the courts are careful
and conscientious in the trial of suits. According to the report
of Commissioner Wright, in seventy counties scattered over twelve
states but 67.8 per cent. of the petitions for divorce were granted.
From this fact it is inferred that "judges exercise a reasonable
care before issuing a decree." For the counties investigated "it
is certain that in about 30 per cent. of the cases of petition a
decree has been denied. The number of cases involved is sufficiently
large and the localities sufficiently different to lead one to
the conclusion that the same state of affairs exists throughout
the country, and that our courts, instead of being careless in
the matter of granting decrees, weigh well the causes alleged,
and do not grant decrees unless the allegations of the libellants
are fairly sustained."[743] Still, under the laws as they exist
there is plenty of opportunity for abuse, even when the court is
cautious. The service of notice on the absent defendant through
the mails or through publication in the newspapers, allowed in
many states, and the fact that only in a few instances is there
any provision requiring the prosecuting attorney to resist an
undefended libel, afford occasions for fraud.[744] Some of the
usual statutory causes of divorce, under the refinement of judicial
interpretation, seem virtually to invite divorce.[745] This is to
some extent true of "nonsupport," "wilful absence," "desertion,"
and "gross neglect of duty;" while "cruelty" has become almost an
"omnibus clause." Under plea of "constructive cruelty" or "mental
anguish" the grievances admitted as valid grounds for dissolution
of wedlock are often trivial or even absurd, although it is likely
that they are sometimes put forward as a shield or substitute for
graver wrongs which the plaintiff is reluctant to disclose.[746]
The general introduction of the decree _nisi_, giving opportunity
for reflection, might prove a wholesome correction of the almost
necessarily liberal policy of the courts in such cases. Divorce
suits are sometimes too hastily disposed of by the judges because
of the pressure of other litigation. The creation of a limited
number of special divorce courts in each of the states might prove a
remedy, if care were taken not to so increase the cost of actions as
virtually to discriminate against the poor.
[743] WRIGHT, _Report_, 162-64. In the whole country, during
the years 1867-86, 328,716 decrees were granted, representing
probably 484,683 petitions.
[744] In forty-five counties in twelve states, for the period
1867-86, notice was served by publication in 9,944 cases; in
17,040 cases personal service was made; and in 2,681 cases no
evidence on the point was obtainable: WRIGHT, _Report_, 201, 202.
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