DIVORCE, a breach or dissolution of the bond of marriage.

Divorce was allowed of in great latitude both amongst the Pagans and Jews. In Rome, barrenness, age, disease, madness, and banishment, were the ordinary causes of divorce. Under the consulship of Μ. Attilius and P. Valerius, Spurius Carvilius was the first who put away his wife because she was barren; though Plutarch, in his Roman Questions, maintains that Domitian was the first who permitted divorce. Justinian afterwards added impotence, a vow of chastity, and the profession of a monastic life, as valid reasons of divorce.

The Roman lawyers distinguish between repudium and divortium ; the former being the breaking of a contract or espousal, and the latter separation after matrimony. Romulus enacted a severe law, which forbade a wife to leave her husband, but gave the husband the liberty of turning away his wife, either upon her poisoning her children, counterfeiting his private keys, or committing the crime of adultery; if the husband, however, put her away on any other occasion, he ordered one moiety of his estate to be settled on the wife, and the other to be given to the goddess Ceres, besides an atonement to the gods of the earth. In later times, however, the women as well as the men might sue a divorce. The common way of divorcing was by sending a bill to the woman, containing the reasons of separation, and the tender of all her goods which she brought with her, and this was called repudium mittere ; or else it was performed in her presence, and before seven witnesses, accompanied with the formalities of tearing the writings, refunding the dowry, taking away the keys, and turning the woman out of doors.

The Grecian laws concerning divorce were different. The Cretans allowed divorce to any man who was afraid of having too many children. The Spartans seldom divorced their wives, and it was extremely scandalous for a woman to depart from her husband. The Athenians allowed divorce on very trivial grounds. It proceeded by a bill, containing the reason of the divorce, and approved, [7:8:72]if the party appealed, by the chief magistrate; and women also were allowed to leave their husbands on just occasions. Persons divorcing their wives were obliged to return their portions, otherwise the Athenian laws obliged them to pay nine oboli a month for alimony. The terms expressing the separation of men and women from each other were different; the men were said am , πiμnttv or a t ιrο ∖ υnv, to dismiss their wives; but wives, a<κοKu<jrnv, to leave their husbands. “The law of Moses,” observes Archdeacon Paley, “for reasons of local expediency, permitted the Jewish husband to put away his wife; but whether for every cause, or for what cause, appears to have been controverted amongst the interpreters of those times. Christ, the precepts of whose religion were calculated for more general use and observation, revokes this permission, as given to the Jews ‘ for their hardness of heart,’ and promulgates a law which was thenceforward to confine divorces to the single cause of adultery in the wůfe: ‘ Whosoever shall put away his wife, except it be for fornication, and shall marry another, committeth adultery; and whoso marrieth her which is put away, doth commit adultery.’

“Inferior causes may justify the separation of husband and wife, although they will not authorize such a dissolution of the marriage contract as w ʹ ould leave either at liberty to marry again; for it is that liberty in which the danger and mischief of divorces generally consist. The law of this country, in conformity to our Saviour’s injunction, confines the dissolution of the marriage contract to the single case of adultery in the wife; and a divorce even in that case can only be brought about by the operation of an act of parliament, founded upon a previous sentence in the spiritual court, and a verdict against the adulterer at common law; which proceedings taken together compose as complete an investigation of the complaint as a cause can receive. It has lately been proposed to the legislature to annex a clause to these acts, restraining the offending party from marrying with the companion of her crime, who by the course of proceeding is always known and convicted; for there is reason to fear that adulterous connections arc often formed with the prospect of bringing them to this conclusion; at least, when the seducer has once captivated the affection of a married woman, he may avail himself of this tempting argument to subdue her scruples and complete his victory; and the legislature, as the business is managed at present, assists by its interposition the criminal design of the offenders, and confers a privilege where it ought to inflict a punishment. The proposal deserved an experiment; but something more penal, it is apprehended, will be found necessary to check the progress of this alarming depravity. Whether a law might not be framed, directing the fortune of the adultress to descend as in case of lier natural death ; reserving, however, a certain proportion of the produce of it, by way of annuity, for her subsistence (such annuity in no case to exceed a certain sum); and also so far suspending the estate in the hands of the heir as to preserve the inheritance to any children she might bear to a second marriage, in case there was none to succeed in the place of their mother by the first; whether such a law would not render female virtue in higher life less vincible, as well as the seducers of that virtue less urgent in their suit, I would recommend to the deliberation of those who are willing to attempt the reformation of this important but most incorrigible class of the community. A passion for splendour, for expensive amusements and distinctions, is commonly found in that description of women who w ould become the subject of such a law, not less inordinate than their other appetites. A severity of the kind proposed applies immediately to that passion; and there is no room for any complaint of injustice, since the provisions above stated, with others which might be contrived, confine the punishment, so far as it is possible, to the person of the offender; suffering the estate to remain to the heir, or within the family of the ancestor from whom it came, or to attend the appointments of his will.

“Sentences of the ecclesiastical courts, which release the parties a vinculo matrimonii, by reason of impuberty, frigidity, consanguinity within the prohibited degrees, prior marriage, or want of the requisite consent of parents or guardians, are not dissolutions of the marriage contract, but judicial declarations that there never was any marriage; such impediment subsisting at the time as rendered the celebration of the marriage rite a mere nullity. And the rite itself contains an exception of these impediments. The man and woman to be married are charged t if they know' any impediment why they may not be lawfully joined together, to confess it ;’ and assured, ‘ that so many as are coupled together, otherwise than God’s word doth allow, are not joined together by God, neither is their matrimony lawful ;’ all which is intended by way of solemn notice to the parties, that the vow they are about to make will bind their consciences and authorize their cohabitation only upon the supposition that no legal impediment exist.”

By the law of Scotland, a divorce may be obtained on the ground either of adultery or of wilful desertion; but neither of these grounds dissolves the marriage ipso jure; and if a process of divorce be not instituted, the marriage subsists, notwithstanding the adultery or desertion. Until recently the action of divorce proceeded before the commissaries of Edinburgh; and in every such action, whether founded on adultery or desertion, the pursuer must make oath that the action is not collusive. The legal effect of divorce on the ground of desertion is, that the offending party loses the “tocher,” as it is called, and the donationes propter nuptias ; that is, the offending husband is bound to restore the dowry, and to pay or make good to the wife all her provisions, legal or conventional; and the offending wife forfeits her dowry, and all that would have come to her had the marriage been dissolved by the predecease of her husband. It is now held that recrimination is not a good defence against divorce for adultery; yet, as the mutual guilt may affect the patrimonial interests of the parties, it may be stated in a counter-action. But lenocinium, or the husband’s participation in the profits of his wife’s prostitution, nay even the husband’s connivance in her guilt, is a good defence to the wife against an action of divorce on the ground of adultery. The statute 1600, c. 20, declares marriages contracted between the adulterer and the person with whom he or she may be found, by the sentence of divorce, to have committed the crime, to be null and unlawful, and the issue of such marriages to be incapable of succeeding to their parents; but the act, nevertheless, has not the effect of bastardizing such issue. The right to institute a divorce is personal to the husband or wife; but if, after the action has been raised, either party die before the decree of divorce becomes final, it has been argued that the natural dissolution of the marriage by death supersedes and definitively closes all proceeding commenced for dissolving it on any other ground. The natural dissolution, it has been contended, is the first effectual one, and that which is to regulate all questions as to the patrimonial rights or the status of the survivor. But the question how far litiscontestation in such a case renders it transmissible to representatives, has .not yet, we believe, been decided.

By the law of England there are two kinds of divorce, the one total and the other partial; the one a vinculo matrimonii, the other merely a mensa et tow. The total [7:8:73]divorce must be for some of the canonical causes of impediment, and these existing before the marriage, not supervenient or arising afterwards; for in cases of total divorce the marriage is declared null, as having been absolutely unlawful ab initio. Divorce a mensa et toro is when the marriage is just and lawful ab initio, but, for some supervenient cause, as in the case of adultery in either of the parties, it becomes impossible for them to live together. But in England adultery is only a cause of separation from bed and board; because, according to the law of that country, if divorces were allowed to depend upon a matter within the power of either of the parties, they might become extremely frequent, and the stability of society might in consequence be shaken. However, divorces a vinculo matrimonii have latterly been frequently granted by act of parliament; though, in order to prevent such from being obtained by fraud and collusion, the two houses not only examine witnesses in order to be convinced of the adultery of the wife, but they also require that the husband shall have obtained a sentence of divorce in the spiritual courts, and a verdict with damages in a court of law against some one who has had criminal intercourse with the wife. But this is not a standing order of the House of Lords; it is merely adopted as a rule of caution, and, in particular circumstances, it may therefore be dispensed with.

In connection with this subject a most important question has arisen, and can scarcely be said to be yet determined, namely, whether an English marriage can be dissolved by a Scottish court, when the parties have come within its jurisdiction. This question has been decided in the negative by the English, and in the affirmative by the Scottish judges. The ground taken by the English courts was, that an English marriage was by its nature indissoluble, and that as the lex loci contractus regulates other contracts, so it ought to regulate this. But in the Scottish courts it was contended, with much apparent force, that, in such a question as this, the lex loci must prevail over the lex loci contractus, and that the principle of comitas between the two countries, as well as public policy, requires that this doctrine should be recognised and admitted. The question, however, being one of great difficulty and nicety, we abstain from giving any opinion in this place concerning it.