A History of Matrimonial Institutions, Vol. 3 of 3

by George Elliott Howard

Thus the law remained until 1833, except that a form of oath was prescribed in 1810.[170] In the meantime an ever-increasing number of divorce acts appears in the session laws.[171] Between 1798 and 1835 at least two hundred and ninety-one decrees for absolute dissolution of marriage were granted by the legislature. In the beginning of the period the average annual output was but four; at the close it had risen to not less than twenty-eight.[172] In one instance the previous finding of a jury seems to have been thought superfluous. John Cormick, having fled from Ireland to Georgia in 1798, before the constitution went into effect, and his family refusing to accompany him, the legislature, without a verdict, declared his person and property exempt from the claims of Eliza his wife as if they were never married, and John was fully authorized to do all things as if he had never entered into the matrimonial state.[173] Another case shows the Georgia lawmaker a close second in legal economics to his brother of Kentucky. On December 13, 1816, twenty-one pairs were set free and the offenders forbidden to remarry in thirteen lines of print, excluding the names.[174] In 1833 a remedy was therefore sought through an amendment to the constitution. "Whereas," explains the preamble, whose redundant adjectives may well be a sign of serious distress, "the frequent, numerous, and repeated, applications to the legislature to grant divorces has (sic) become a great annoyance to that body, and is (sic) well worth their attention," both on account of the expense and the unnecessary "swelling" of the laws and journals, and "believing that the public good would be much promoted, and that the parties would receive full and complete justice;" therefore it is enacted as a part of the organic law that "divorces shall be final and conclusive when the parties shall have obtained the concurrent verdicts of two special juries authorizing a divorce upon legal principles."[175]

Unless it be assumed that there was no serious intention to put a check upon the facility with which divorces could be obtained, it is almost incredible that a provision so loose and ambiguous should have been adopted. For the retention of the phrase "upon legal principles" still left a rich field for speculation as to the proper grounds of divorce, total or conditional; and it was equally uncertain whether the juries could determine the law as well as the facts in each case. So the courts, apparently, continued to grant as many divorces without help of the assembly as were permitted before that body lost its power to interfere.

Affairs continued in this unsatisfactory condition until 1847, when suddenly what proved in the end to be a drastic remedy was administered in the case of Head v. Head, tried on appeal from the superior court of Monroe county. The elaborate opinion of Justice Nisbet in this suit, reviewing as it does the preceding legislation, is the best source of information for the history of divorce in Georgia. The case arose in a petition for dissolution of the marriage bond on the sole ground of abandonment of the husband by the wife, which ground, "it is too plain to admit of question," is not "recognized as a cause of divorce a vinculo" by the common law. On the other hand, the counsel for the appellant argued that by "a fair construction of the constitution of Georgia, and of the laws enacted to carry it into effect, the question of a divorce or not, in its totality, is submitted to the special juries; that they are the sole and final judges in all cases of what shall be a good cause of divorce, irrespective of the common law principles." To determine, therefore, the relative powers of the judge and the jury, and to discover what are the "legal principles" mentioned in the constitution, became the dual problem which the court was called upon to solve. In the outset it is held by the court that the constitution of 1798 is in restraint of divorce in three ways: (1) by transferring full jurisdiction in the first instance from the legislature to the superior courts; for before that date the assembly had exercised "unlimited power over the subject;" (2) by restraining the legislative will through requiring a fair trial before a jury before that will could be exercised; (3) by "restricting both the courts and the legislature, as to their power to grant divorces, to such cases as were grantable upon legal principles."

Disregard of these intended restrictions in the statutes and in judicial practice had led to most serious evils. The reasons assigned in the preamble to the amendment of 1835, Justice Nisbet urges, were not the true reasons which actuated its authors. That amendment arose "in a conviction upon the minds of prudent and discerning men, that divorces under the constitution of 1798 were alarmingly frequent;" and this was due to the fact that responsibility was divided between the courts and the legislature. "Under the old system, the courts but rarely seem to have felt, that they had anything to do with the trial of the divorce cause, other than to subserve the double purpose of an automaton agent in the hands of lawyers to present their cases to the juries. Believing that the legislature, whether for good or evil, had made the juries the sole arbiters of the law and facts, they could of course feel no responsibility about the matter, and the consequence was, as all men know who know anything of our courts of justice, that divorces were had with flagrant facility; that some were refused which ought to have been allowed, and hundreds were granted which ought to have been refused; and that the event of a divorce cause depended more upon the fact whether it was defended or not, and if defended, upon the zeal and ability of counsel, than upon anything else. Nor was the case essentially different when it came before the legislature. The legislature, taking it for granted that the courts had settled all the legal principles involved, in the majority of cases, with ready acquiescence affirmed the judgment of the court and divorced the parties. The wealth and standing of the parties, their political and social relations, or, perhaps, the personal beauty and address of a female libellant, controlled in many cases the action of the legislature." Referring to the statistics of legislative divorce, above quoted, the court continues: "How fearful was the ratio of increase! Well might the patriot, the Christian, and the moralist look about him for some device to stay this swelling tide of demoralization." But "it is said that the new mode of granting divorces has not remedied the evil; that divorces are as frequent under the new as under the old constitution. This is, we admit, to a great extent true, and the reason is obvious. It is owing to the wrong construction of the constitution"—the submission to the jury of the whole question of law as well as of fact. The Georgia legislature was not checked, as in England, by the record of two preceding trials;[176] "and although in France, divorces by the Napoleonic Code[177] may be granted without cause, upon mutual consent merely, yet the application must be made to a judicial tribunal, and the consent is subjected to constraints, which create great and serious checks upon its abuse."

Accordingly, it was held by the court that the sole causes for "divorce in Georgia are those of the common law." For total divorce, or, more properly speaking, annulment of a voidable marriage, these causes are "pre-contract, consanguinity, affinity, and corporal infirmity;" while for a partial divorce adultery and cruelty are the only grounds recognized.

One cannot help admiring the stern moral courage which enabled the court to render this decision. At one stroke and without warning the social standing of hundreds was put in jeopardy. Those who thought themselves single found themselves married. Many who may have taken new partners became liable to actions for bigamy; and their children were bastards. The justice was aware of his grave responsibility. "The judgment we have given in this case is in repeal of the practice of the courts in a majority of the circuits, and in disaffirmance of the opinion of eminent jurists upon the bench and at the bar, and in conflict with that public sentiment which, springing out of, and strengthened by, the heretofore judicial facility which has characterized the action of the courts, tolerates and expects divorces for slight causes." At the same time, however wise, and in the event beneficent, may have been this judgment, one must also confess that in its wider bearings it reveals the dangers for society which may lurk in the unyielding logic of individual judicial opinion, should healthy public sentiment not be allowed, at least in some measure, to direct and mold the decrees of our courts of justice.[178] The hardships arising from the decision in question were redressed in 1849 by an act validating all second marriages formed in consequence of divorces granted for illegal causes by the courts or by the legislature; and the same year this extraordinary episode in social history was brought to a close by a constitutional amendment declaring that "divorces shall be final and conclusive when the parties shall have obtained the concurrent verdicts of two special juries authorized to divorce upon such legal principles as the general assembly may by law prescribe."[179]

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]

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]

By the present law, which, with a slight modification in 1872 and another in 1894, has remained unaltered since the act of 1853, eight causes for complete dissolution of wedlock are recognized; and jurisdiction in all suits for divorce, annulment, or separation is vested in the "circuit and corporation courts on their chancery side." An absolute decree may be obtained (1) for adultery; (2) natural or incurable impotency of body existing at the time of entering into the marriage contract; (3) where either party is sentenced to confinement in the penitentiary; (4) where prior to the marriage either party, without the knowledge of the other, has been convicted of an infamous offense; (5) "where either party charged with an offence punishable by death or confinement in the penitentiary has been indicted, is a fugitive from justice, and has been absent for two years;"[185] (6) where either party wilfully deserts or abandons the other for three years; (7) "where at the time of the marriage, the wife, without the knowledge of the husband, was enceinte by some person other than the husband;" (8) or where prior to the marriage she had been, without the husband's knowledge, notoriously a prostitute. But it is especially provided that for the last two causes no divorce shall be decreed if it appears that the person applying has cohabited with the other after gaining knowledge of the facts. The same is true of "conviction of an infamous offence;" and under the third cause, that of sentence to the penitentiary, a pardon shall not restore the offender to conjugal rights.[186]