In 1827 the "district courts throughout the state and the parish court of New Orleans" were given "exclusive original jurisdiction in cases of divorce," with appeal to the supreme court. They were authorized to grant total divorce (1) for adultery of the wife; or (2) for that of the husband "when he has kept his concubine in the common dwelling, or openly and publicly in any other;" (3) for excesses, cruel treatment, or outrages, as conditioned for separation in 1808; (4) condemnation of either married person to an "ignominious punishment;" (5) abandonment for five years when the offender has "been summoned to return to the common dwelling," as is provided for in cases of separation from bed and board. It is, however, especially declared that, except when the cause is adultery or ignominious punishment, no full divorce shall be granted "unless a judgment of separation from bed and board shall have been previously rendered," and unless two years shall have thereafter expired without reconciliation. But in the two cases excepted above a "judgment of divorce may be granted in the same decree which pronounced the separation from bed and board."[242] The fifth cause approved in 1827 was supplemented by a new ground in 1832. Whenever either spouse is charged with an infamous crime and is a fugitive from justice beyond the state, a total divorce may be claimed by the other, without need of a previous decree of separation, on producing evidence of the actual guilt and flight of the accused.[243] "Habitual intemperance" on the part of either husband or wife was added to the list in 1855;[244] and in 1857 the time which must elapse between the decrees for partial and full divorce was reduced to one year.[245] An "omnibus" clause comes next in 1870, complete dissolution of wedlock being then permitted "for any such misconduct repugnant to the marriage covenant as permanently destroys the happiness of the petitioner;" but it was repealed in 1877.[246]
For the sake of convenience, the present law of Louisiana covering the grounds of divorce—whose evolution was thus completed in 1870—may now be summarized. Absolute divorce, without need of a previous decree of separation, is permitted where the husband or wife may have (1) been sentenced to an infamous punishment; or (2) been guilty of adultery.[247] A limited divorce, which may be followed in each case by a total divorce after one year, is authorized (1) for adultery on the part of either spouse; (2) when the other party has been condemned to an infamous punishment; (3) on account of the habitual intemperance of one of the married persons; (4) excesses, cruel treatment, or outrages of one of them toward the other; (5) for public defamation; (6) for abandonment on the part of one of the married persons; (7) for an attempt of one of them against the life of the other; (8) when the husband or wife has been charged with an infamous offense and shall have fled from justice, on producing proof of the actual guilt or flight.[248] An important modification was made in 1898. The person in whose favor a limited divorce has been rendered may apply and get a full divorce in one year, while the adverse party must wait two years before fore he can secure a similar decree, in the meantime the wife's right to alimony remaining unimpaired.[249]
The divorce legislation of the "Republic of Texas" has remained in force with little modification to the present hour. The district courts still have jurisdiction. By the act of January 6, 1841, a marriage may be declared null and void for impotency; and absolute divorce may be granted as follows: I. In favor of the husband: (1) when the wife is guilty of adultery; or (2) has left his bed and board for three years with the intention of abandonment. II. In favor of the wife: (1) when the husband has left her for three years with like intention; or (2) has abandoned her and lived in adultery with another woman. III. In favor of either spouse for excesses, cruel treatment, or outrages toward the other, if the ill-treatment is of such a nature as to render their living together insupportable.[250] These three groups appear unaltered in the present code; and there is added the following: IV. In favor of either husband or wife, "when the other shall have been convicted, after marriage, of a felony and imprisoned in the state prison; provided, that no suit for divorce shall be sustained" because of such conviction "until twelve months after final judgment," nor "then if the governor shall have pardoned the convict;" and provided also that the conviction has not been obtained on the testimony of either spouse.[251]
The grounds of divorce recognized in the statutes of Arkansas have been in force since 1838. The circuit courts may now grant total or limited divorce for the following causes: (1) when either spouse was at the time of the marriage and still is impotent of body; (2) when either deserts the other and remains absent one year without reasonable cause; (3) when a former spouse was living at the time of the marriage; (4) when either is convicted of felony or other infamous crime; or (5) shall be addicted to habitual drunkenness for the space of one year; or (6) shall be guilty of such cruel and barbarous treatment as to endanger the life of the other; or (7) shall offer such indignities to the person of the other as shall render his or her condition intolerable; (8) when subsequent to the marriage either person has committed adultery.[252]
By act of Congress,[253] certain general laws of Arkansas, including those of divorce, are extended to the Indian Territory; so the causes just enumerated are there in force.[254] Limited divorce does not exist in Oklahoma; but in that territory the district court may grant full dissolution of wedlock (1) when either person had a spouse living at the time of the marriage; (2) for abandonment during one year; (3) for adultery; (4) for impotency; (5) "when the wife at the time of the marriage was pregnant by another than her husband;" (6) for extreme cruelty; (7) for fraudulent contract; (8) for habitual drunkenness; (9) for gross neglect of duty; (10) for conviction and imprisonment in the penitentiary for a felony after marriage.[255]
"Arizona, from 1871-77, in addition to six ample reasons for divorce, had an 'omnibus clause' in operation which is a marvelous piece of legislation." "Whereas," we are told, "in the developments of future events, cases may be presented before the courts falling substantially within the limits of the law, as hereinbefore stated, yet not within its terms, it is enacted, that whenever the judge who hears a cause for divorce deems the case to be within the reason of the law, within the general mischief the law is intended to remedy, or within what it may be presumed would have been provided against, by the legislature establishing the foregoing causes of divorce had it foreseen the specific case and found language to meet it without including cases not within the same reason, he shall grant the divorce." Well was this called, continues Richberg, "the 'seventh wonder' of Arizona's divorce code."[256]
A later statute, somewhat more cautiously, allows the district court to decree a total divorce (1) when the husband or wife is guilty of excesses, cruel treatment, or outrage toward the other, whether by the use of personal violence or any other means; (2) in favor of the husband when his wife shall have been taken in adultery; or (3) when she has voluntarily left his bed and board for the space of six months with the intention of abandonment; (4) in favor of the wife when the husband has left her for the same time with a like motive; (5) for his habitual intemperance; (6) for his wilful neglect to provide the necessaries or comforts of life during the same period, having sufficient ability, or failing to do so by reason of his idleness, profligacy, or dissipation; or (7) when he shall be taken in adultery; (8) in favor of either spouse when the other has been convicted after marriage of a felony and confined in any prison. Suit on the last-named ground cannot be sustained until six months after final judgment, nor when the husband or wife was convicted on the testimony of the other.[257] This law is superseded by the act of 1903. Absolute divorce may now be granted on complaint of the aggrieved for (1) adultery; (2) physical incapacity; (3) conviction and imprisonment for felony, provided that suit may not be sustained until one year after judgment and that conviction has not been had on the testimony of either spouse; (4) wilful desertion for one year, or for habitual intemperance; (5) excesses, cruel treatment, or outrages, whether by the use of personal violence or any other means; (6) to the wife for the husband's neglect for one year to provide her with common necessaries of life, having the ability, or his failure to do so because of idleness, profligacy, or dissipation; (7) to either for the other's conviction of felony before marriage without the innocent person's knowledge; (8) to the husband when without his knowledge the wife was pregnant by another man at the time of the marriage.[258]
In New Mexico the district courts may grant absolute divorce for (1) abandonment; (2) adultery; (3) impotency; (4) when without the husband's knowledge the wife at the time of the marriage was pregnant by another man; (5) cruel and inhuman treatment; (6) to the wife for the husband's neglect to support; (7) habitual drunkenness; (8) conviction and imprisonment for felony subsequent to the marriage.[259] Separation a mensa et thoro does not exist; but in the laws of 1884 there is a curious provision, which seems designed, in a truly patriarchal spirit, to soothe domestic ills and check matrimonial transgressions through intervention of the local magistrate. One is left in little doubt as to the right ideal of family life, being assured that "the duties and relations that should exist between married persons are the following, to wit: The husband is the head of the family; he, nevertheless, owes fidelity, favor, support, and protection to the wife; he should make her a participant in all the conveniences he enjoys; he should show her the utmost and every attention in cases of sickness, misfortune or accident, and provide for her the necessaries of life according to his condition and ability; and the wife owes fidelity and obedience to the husband; she is obliged to live with him and accompany him to such place as he may deem proper and advantageous to make his residence." So when any difficulty arises on account of failure in any of these things, the injured person may go before the justice of the peace in his "precinct and make complaint demanding judicial action." Then the magistrate "shall forthwith dispatch his compulsory writ directing the party defendant immediately to appear to such complaint; both parties being present, it shall be the duty of the justice to endeavor to effect a reconciliation, the first of which endeavors he shall enter on record upon his docket, affording the parties a reasonable opportunity; but if after having so done, the person making the complaint does not agree, the justice shall then proceed to try the matter in a summary manner, provided always, that the reasons for disagreement are simple, such as non-fulfillment" of the duties above set forth. In "case of conviction he shall cause the delinquent to act as required by the laws of the conjugal relation;" and when there is resistance he "may order that such person be confined in the county jail, there to remain until he comply with those duties by which both the husband and wife were mutually bound." Furthermore, it is especially provided, that when any persons are thus put in jail "for an infraction of duty" and fail to "furnish their own provision," the sheriff may "dispose of their services for their maintenance." Should, however, the trouble "arise from adultery, or cruelty, or ill temper, rendering the life of the consort insecure, the justice ... shall, after due investigation send the case up to the district court which shall take cognizance of and try the same;" and "whenever a temporary separation occurs between husband and wife in order to bring suit before the district court, the justice of the peace will provide how the family shall be cared for, and will immediately report to the probate judge of the county, so that the latter may provide for the care of the minors, their support and education, as also for the wife, in case she be the injured party, during the controversy or until otherwise provided for by the district court."[260] It is not, perhaps, surprising that this whole subject is omitted from the compilation of 1897.
By the code of Porto Rico the district court has jurisdiction. Partial divorce is not recognized; but marriage may be dissolved, on the petition of the aggrieved, for (1) adultery; (2) conviction of felony, which may involve the loss of civil rights; (3) "habitual drunkenness or the continued and excessive use of opium, morphine, or any other narcotic;" (4) cruel treatment or gross injury; (5) abandonment for one year; (6) "absolute, perpetual, and incurable impotence" occurring after marriage; (7) the "attempt of the husband or wife to corrupt their sons or to prostitute their daughters," or connivance of either in the same; (8) the proposal of the husband to prostitute the wife.[261]
The experience of South Carolina is peculiar. After abstaining from any legislation on the subject for two hundred years, that state indulged in a conservative divorce statute in 1872. Hitherto the courts were competent only to grant separation from bed and board under the common law. By the act in question they were empowered to pronounce decrees of absolute divorce in favor of either spouse (1) for adultery and (2) for abandonment[262] during the space of two years.[263] But this law was of short duration, being repealed in 1878.[264] South Carolina legal sentiment on the divorce problem is fairly revealed in connection with two important decisions during the century. Commenting on the case of Vaigneur et al. v. Kirk, decided in 1808, Editor Desaussure contrasts the laxity of the marriage laws with the stringency of the rule relating to divorce. "The subject of marriage, and consequently the legitimacy of children, is on the same loose footing in this state that it was in England before" 1753[265] and as "it now is in Scotland. We have no statute regulating marriages, or providing any form for the celebration of them, or for recording them. And they are usually celebrated in any form the parties please, before a clergyman or magistrate." This "remarkable facility of contracting matrimony ... is strongly contrasted with the impracticability of dissolving the contract. No divorce has ever taken place within the state. The legislature has uniformly refused to grant divorces, on the ground that it was improper for the legislative body to exercise judicial powers. And it has as steadily refused to enact any law to authorize the courts of justice to grant divorces a vinculo matrimonii, on the broad principle that it was a wise policy to shut the door to domestic discord, and to gross immorality in the community."[266]