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
The _Revised Statutes_ of 1827-28 make careful provision for the
annulment of voidable marriages; and by the same enactment the
divorce law is recast. Through sentence of nullity the chancellor
may declare void a marriage for the following causes existing at
the time of the contract: when (1) either husband or wife was below
the age of consent; or (2) had a spouse living under a marriage
still in force; or (3) was an idiot or lunatic; or (4) when consent
of either was obtained by force or fraud; or (5) when either was
physically incompetent to enter the matrimonial state. All these
grounds of nullity, with one slight change and some modification
of the conditions on which suit may be brought, are sanctioned by
the present code.[375] Divorce from the bond of wedlock according
to the revision of 1827-28 may be granted on the same conditions
regarding residence as those prescribed in 1813, except that it
allows the injured person, if an actual inhabitant at the time of
exhibiting the bill, to bring suit whenever the offense complained
of has been committed in the state. As in 1803, the guilty defendant
is forbidden to remarry until after the death of the complainant.
The three grounds of separation from bed and board in favor of the
wife allowed in that year remain unaltered, save that under the
second head the phrase referring to her being under the husband's
"dominion and control" is omitted; and now, when the marriage takes
place out of the state, the parties must have "become and remained
inhabitants" of it for at least one year, and in order to warrant a
decree the woman must be an actual resident thereof at the time of
bringing complaint.[376]
[375] _Rev. Stat. of 1827-28_ (Albany, 1829), II, 141-44. This
law provides that no bill for annulment may be brought by the
party who was of lawful age of consent, nor by the other if
there is voluntary cohabitation after age of consent. Suit
on the ground of force or fraud is likewise barred, if there
has at any time been voluntary cohabitation; and in case of
physical disability, it must be brought within two years after
solemnization of the marriage: _ibid._, II, 142, 143. _Cf._
STOVER, _Code of Civil Procedure_ (1902), II, 1832-33, where the
last-named provision is retained. By this _Code_, II, 1626, 1627,
the fourth ground of annulment is broadened by adding the word
"duress;" and a woman is authorized to bring action (1) when she
had not reached the age of sixteen at the time of the marriage;
(2) when the marriage took place without the consent of parent
or guardian; or (3) "when it was not followed by consummation or
cohabitation, and was not ratified by any mutual assent of the
parties after the plaintiff attained the age of sixteen years."
_Cf._ _Laws_ (1887), chap. 22, p. 25, for the origin of these
clauses.
[376] _Rev. Stat. of 1827-28_, II, 144-47.
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