A History of Matrimonial Institutions, Vol. 3 of 3

by George Elliott Howard

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]

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]

c) Remarriage, residence, notice, and miscellaneous provisions.—Throughout the century, and especially during the first half, many of the southern states have been conservative, even severe, regarding the liberty of the person offending to remarry after full separation; but in very few cases is any restraint put upon the further marriage of the person in whose favor the decree is granted. The divorce acts passed by the assembly of Virginia sometimes expressly forbid the guilty person to contract further wedlock during the lifetime of the former spouse.[270] The law of 1848, when the marriage bond is dissolved on account of infidelity, authorizes the court in its discretion to allow both parties to remarry or only the injured person, as may seem just.[271] Such substantially is the present law. "In granting a divorce for adultery, the court may decree that the guilty party shall not marry again; in which case the bond of matrimony shall be deemed not to be dissolved as to any future marriage of such party, or in any prosecution on account thereof. But for good cause shown, so much of any decree as prohibits the guilty party from marrying again, may be revoked and annulled at any time after such decree, by the same court by which it was pronounced."[272] No restraint appears to be put upon the immediate remarriage of persons separated for other causes.

The early statutes and the decrees for full divorce in individual cases passed by the assembly of Maryland, by their silence on the subject, appear to contemplate the further marriage of the persons at pleasure. The law of 1872, however, is somewhat conservative. "In all cases where a divorce a vinculo matrimonii is decreed for adultery or abandonment, the court may, in its discretion," forbid the guilty party to "contract marriage with any other person during the lifetime" of the injured spouse, the bond of marriage not being dissolved, but remaining in full force with respect to such offender.[273] This restriction is now omitted from the code.[274] In the District of Columbia the guilty person may not remarry except with the former spouse.[275]

Formerly the law of North Carolina was stringent in this regard. The act of 1814 permits the "complainant or innocent person" to "marry again as if he or she had never been married;" leaving us to infer, perhaps, that the defendant was not allowed such liberty.[276] In 1828 it is squarely enacted that "no defendant or party offending, who shall be divorced from the bonds of matrimony ... shall ever be permitted to marry again."[277] This rule stands in sharp contrast with the policy of the later law. First the prohibition was restricted to the lifetime of the aggrieved.[278] Next, in 1869, the term was reduced to two years.[279] From 1871 to 1895 no check whatever was put upon the further marriage of either spouse, whether guilty or innocent;[280] but now in case of wilful desertion the guilty defendant may not rewed in five years, or during the lifetime of the plaintiff, if divorced for the eighth cause above considered.

The Georgia statute approved in 1806 allows remarriage when a contract is nullified under the principles of ecclesiastical law; but denies the privilege to the person whose "improper or criminal conduct" is the cause of an absolute divorce, so long as the innocent consort lives.[281] This rule long remained in force;[282] but under the existing code a rather peculiar procedure is adopted. The jury according to whose final verdict a decree of absolute divorce is granted determines the rights and disabilities of the parties, including the question of remarriage, subject to the revision of the court; but provision is made for subsequent removal of the disabilities thus imposed. On proper application, notice of which must be published in a newspaper for sixty days, with twenty days' personal notification to the other divorced person if still living and residing in the county, the question of granting relief is submitted to a new jury, "who shall hear all the facts, and if, in their judgment, the interest of the applicant or of society demands the removal of such disabilities," shall so find; and the person relieved shall then be allowed to form a second marriage as if no former contract had ever existed. At the trial the divorced person or any citizen of the county may resist the application; but should no person appear for this purpose, then "the solicitor-general shall represent the state, with full power to resist the same, as in ordinary divorce cases."[283]

By the Tennessee statute of 1799 no restraint is put upon immediate remarriage in any case of divorce, except where the cause is infidelity, when the guilty defendant may not marry the person with whom the crime was committed during the lifetime of the former spouse.[284] This provision still appears unchanged in the code.[285] The offender is dealt with in precisely the same way by the Kentucky law of 1809; and by it also the injured spouse is permitted to marry again only after two years.[286] In 1820 the innocent person is relieved from all restraint;[287] both parties are treated as "single" persons in 1843;[288] and likewise by the present statute, in all cases of divorce, no matter what the cause, guilty and innocent alike are absolutely free to form new marriages whenever it shall please them so to do.[289] The same freedom exists in Arizona, New Mexico, Arkansas, Indian Territory, Texas, West Virginia, and Missouri; although in the last-named state until 1885 the guilty defendant was not permitted to remarry for five years, "unless otherwise expressed in the decree of the court."[290] Since 1857, in Mississippi, by a more stringent clause "the decree may provide, in the discretion of the court, that a party against whom a divorce is granted because of adultery shall not be at liberty to marry again;" but the freedom of the successful plaintiff is unrestrained.[291] In 1824 the Alabama assembly in all cases forbade the guilty person to remarry; but this prohibition was removed by an act of February, 1870, which, however, lasted only until April, 1873, when it in turn was repealed. By the existing code the chancellor in making his decree may, according to the evidence and nature of the case, direct whether the party, against whom the decree is rendered, shall be permitted to marry again; and in decrees now or hereafter rendered, when no order is made allowing or disallowing the divorced person to remarry, he may on petition and proper proof allow or disallow the petitioner to form a new marriage.[292] It is constituted bigamy in Oklahoma for either divorced person to remarry within six months after the divorce, or until thirty days after final judgment, if appeal be taken. Every decree of divorce shall recite that it "does not become absolute and take effect until the expiration of six months" from the day when it was rendered.[293] According to the Louisiana law, since 1808—at least until 1888—the wife cannot remarry until ten months after dissolution of the contract, whether by death, divorce, or decree of nullity.[294] In case of divorce for infidelity the offender may not marry his or her accomplice; and this last provision has been in force since 1827.[295] Under the same conditions as in Louisiana, the woman in Porto Rico may not marry during a period of three hundred and one days after dissolution of the marriage, or until a child is born if she be pregnant at the time of the husband's death.[296] By the criminal code of Florida, apparently, the guilty party may not rewed.[297]

In all of the southern and southwestern states, except Louisiana and, of course, South Carolina, a short term of residence is required to qualify the plaintiff to bring suit. Virginia began with a fairly cautious act in 1848. A definite term is not fixed; but a petition for divorce must be brought in the court of the county, city, or town where one of the parties lives, and when the plaintiff has left the county or other place where the married persons dwelt together, the "suit shall be instituted and heard in the court" held for that same county, if the defendant lives there still. The benefits of the act do not extend to any save bona fide citizens at the time of petition; nor to any case where the parties have never lived together as citizens and as married persons in the commonwealth; nor to any cause of adultery which shall have occurred in any other state or country, unless the parties at the time of such cause or before it took place were citizens of the state and lived there together as husband and wife.[298] By the present law no suit can be sustained unless one of the persons has been domiciled in the state for at least one year before; and it must be brought either in the county or corporation where the parties last cohabited, or, at the option of the plaintiff, in that of the defendant, if still a resident of the state; otherwise in the place where the plaintiff dwells.[299]

The same rule as that of the parent state has existed in West Virginia since 1882, when a year's residence of one of the persons instead of mere residence at the time of the filing of the suit was introduced.[300] In Georgia twelve months in the state and six in the county for a divorce of either kind are required.[301] By the laws of Kentucky and Arkansas the term of previous residence for the plaintiff is also one year; and if the cause for divorce arose or existed without the state, he must have been a resident of the state at the time, unless it was also a ground of divorce where it existed or arose. In each of these states "an action for divorce must be brought within five years next after the doing of the act complained of."[302] In Alabama, when the defendant lives outside the state, the plaintiff must have been a bona fide resident for one year before bringing the action; or for three years when abandonment is the cause alleged.[303] Since 1822 in Mississippi the term of residence in the state for the applicant has been one year;[304] although, in 1857, a divorce shall be denied when the parties have never lived together as husband and wife in the state; as also for a cause occurring elsewhere, unless prior to its occurrence they have so dwelt together in the commonwealth. This last restriction does not apply to a bona fide citizen who marries abroad and does not discover the cause of divorce until after return to the state; but in case of desertion the term of bona fide residence must be three years.[305] An important change was introduced in 1863. It is then sufficient to be a citizen of the state or a resident of it for one year; but the applicant must make affidavit that he has not taken up residence to obtain a divorce.[306] By the existing code the courts of chancery may exercise jurisdiction only (1) when both persons are domiciled in the state when suit is commenced; or (2) when the complainant is so domiciled and the defendant is personally served with process in the state; or (3) when one of the consorts is thus domiciled and one or the other of them an actual resident for one year before action began.[307]