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
_b_) _Judicial divorce: jurisdiction, kinds, and causes._--Although
during the colonial period divorce laws had not been enacted,
after the birth of the nation the wheels of legislation, in most
cases, were slow in starting. Once set going, however, they have
moved swiftly enough, so that now a great variety of grounds
for dissolution of wedlock are sanctioned. Under influence of
ecclesiastical law and tradition, conservatism is shown in the
retention by nearly all the older states of so-called divorce from
bed and board. Except in Arizona, Mississippi, Missouri, New Mexico,
Oklahoma, Porto Rico, and Texas, partial divorce is still permitted
in all of the commonwealths and territories under review having any
legislation on the general subject; for South Carolina, except for a
brief period, has never by statute authorized any kind of divorce;
and in Florida separate alimony has the same effect as divorce from
bed and board.
By the Virginia law of 1827, as already seen, absolute divorce,
properly so called, can only be obtained from the legislature,
although the superior courts of chancery are then authorized to
annul voidable marriages.[180] The same tribunals, however, are
granted full "cognizance of matrimonial causes on account of
adultery, cruelty, and just cause of bodily fear; and in such
cases may grant divorce _a mensa et thoro_ in the usual method
of proceeding in those courts." They may thus "decree perpetual
separation and protection to the persons and property of the
parties;" grant to "either, out of the property of the other, such
maintenance as shall be proper;" restore "to the injured party, as
far as practicable, the rights of property conferred by the marriage
on the other;" and provide for the custody, guardianship, and
support of the children.[181]
[180] For natural and incurable impotency of body at the time of
entering into the matrimonial contract; as also for idiocy and
bigamy.
[181] Act of Feb. 17, 1827: _Acts of Gen. Assembly_ (1826-27),
21, 22. _Cf._ same law in _Supp. to Rev. Code_ (1833), 222, 223.
To the causes for which a limited divorce may be obtained
"abandonment and desertion" was added in 1841, and the provision
authorizing annulments was somewhat modified.[182] By the act of
1848, putting an end to legislative interference, the "circuit and
superior courts of law and chancery" are given authority to grant
absolute divorce on the single ground of adultery, with liberty
to both parties to remarry, or only to the innocent or injured
party, as may seem just.[183] A statute of the next year allows
limited divorce for cruelty, reasonable apprehension of bodily
hurt, abandonment, or desertion; and these four causes are still in
force.[184]
[182] Act of March 17, 1841: _Acts of the Assembly_ (1840-41),
78, 79. The court may declare contracts void on the grounds named
in 1827, "or for any other cause for which marriage is annulled
by the ecclesiastical law" (78).
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