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
With this view harmonizes the opinion of Justice Pope in McCreery
_v._ Davis rendered in 1894. While separation from bed and
board--the only form of divorce obtainable in the state--"is a
judicial barrier to any attempt to exercise the rights or enforce
the duties of the parties affected by the judgment, yet the courts
are only too willing to have the parties restored to their original
_status quo_, upon good cause shown. While the remedy is a hard
one, and to a certain extent interferes with the operation of
the laws of nature, still woman must be protected! After all, an
unbending adhesion to the laws of right living has a healthy effect
upon the lives of others. If self-denial is thus necessitated, it
should not be forgotten that many natures are perfected through its
beneficent influence. True philosophy would extract good from every
condition.... By art. IV, sec. 15, of our constitution, the courts
of common pleas have exclusive jurisdiction in all cases of divorce,
and by art. XIV, sec. 5, divorces from the bonds of matrimony
shall not be allowed but by the judgment of a court as shall be
prescribed by law. Thus the general assembly is denied the power
to grant divorces directly, but is permitted to clothe the courts
of common pleas with that power. This last they have refused to do
by repealing the act of 1872;" and thus "we have the common law
restored to us on this subject."[267]
[267] Opinion of Justice Pope in McCreery _v._ Davis, 44 _S. C.
Reports_, 195-227 (1894).
Finally it may be noted that the supreme court of the District of
Columbia has exclusive jurisdiction in all applications for either
full or partial separation. Until recently a divorce from the bond
of wedlock might be granted (1) when either spouse had a husband or
wife living at the time of the contract, "unless the former marriage
had been lawfully dissolved and no restraint imposed" on further
marriage; (2) when the marriage was contracted during the lunacy
of either party; (3) when either was matrimonially incapacitated at
the time of the marriage; or (4) has since committed adultery; (5)
for habitual drunkenness for a period of three years; (6) for cruel
treatment endangering the life or health of the complainant; or (7)
for wilful desertion and abandonment for two years. A divorce from
bed and board was allowed (1) for cruel treatment endangering life
or health; or (2) "reasonable apprehension, to the satisfaction of
the court, of bodily harm."[268] A new and drastic law was passed in
1901. Hereafter absolute divorce will be granted only for adultery,
the guilty person not being allowed to remarry. Legal separation
from bed and board may be obtained for (1) drunkenness, (2) cruelty,
or (3) desertion. Only residents may bring suit for divorce;
and unless the applicant has for three years been a _bona fide_
resident, no decree will be granted for a cause occurring outside
the District before such residence began.[269]
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