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
For a few years North Carolina tried a still different plan for
sharing responsibility between the courts and the legislature.
By the act of 1814 full authority to grant separation from bed
and board, for any of the causes therein named, with alimony to
the wife, is conferred upon the superior court. The same tribunal
may also try petitions for full divorce, dismissing the petition,
dissolving the "nuptial ties or bonds of matrimony," or declaring
the contract null and void, as the case demands; but it is
especially provided that "no judgment, sentence, or decree of final
or absolute divorce" shall be "valid until ratified by the general
assembly."[139] This condition was, however, removed in 1818;[140]
and ten years thereafter legislative divorce was entirely abolished,
so far as it was possible to accomplish it by statute. Because "the
numerous applications for divorce and alimony, annually presented
to the general assembly, consume a considerable portion of time
in their examination, and consequently retard the investigation
of more important (_sic_) subjects of legislation;" and because
"such applications might be adjudicated by other tribunals with
much less expenditure to the state, and more impartial justice to
individuals;" it is therefore enacted that the superior courts of
law shall have "sole and original jurisdiction" in both kinds of
divorce. From this act it may be inferred that the legislature had
granted divorces on petitions which had not gone through the courts
and come up to it for ratification; and for causes other than those
named in the statute.[141] A few years later, by a constitutional
amendment ratified in 1835, the assembly was deprived of the "power
to grant a divorce or secure alimony in any individual case;" and
the same prohibition appears in the constitution of 1876.[142]
[139] _Laws_ (1814), chap. 5; also in _Haywood's Manual of the
Laws of N. C._ (1819), 174-78.
[140] _Acts_ (1818), chap. 968.
[141] This inference is justified by the words of the act as
quoted, and from the clause declaring "that all applications for
other causes than those specified"--in the act of 1814--"shall
be subject to the rules and regulations provided in said act for
the causes therein mentioned."--_Acts_ (1827-28), 19, 20. The law
of 1814, as to causes, appears unaltered in _Laws of the State_
(1821), II, 1292-95.
[142] POORE, _Charters_, II, 1416 (1835), 1439 (1876).
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