By the present law of Delaware, which has existed since 1873, the superior court may decree absolute divorce for (1) adultery in either spouse; (2) desertion for three years; (3) habitual drunkenness; (4) impotency at the time of marriage; (5) extreme cruelty; or (6) conviction of felony, as in 1859. The discretionary grounds on which the court may grant either full or limited divorce are now reduced to two, these in substance being nearly identical with the fourth and eighth causes sanctioned by the statute of 1859.[405]
The history of judicial divorce in the West begins with the statute adopted for the Northwest Territory in 1795. Jurisdiction is vested in the general court and the circuit courts, which are empowered to grant absolute divorce (1) for adultery; (2) impotency; (3) where either person had a husband or wife alive at the time of the second marriage; or to grant partial divorce for extreme cruelty in either spouse.[406] This law was repealed in 1804 by an act of the legislature of Ohio—that portion of the Northwest Territory having been made a state in 1802—giving the supreme court sole cognizance of divorce suits. By it no provision for partial divorce is made; but full dissolution of marriage is sanctioned (1) for bigamy, as in 1795; (2) for wilful absence for five years; (3) for adultery; and (4) for extreme cruelty.[407] After eighteen years' trial, the plan of 1804 was in its turn superseded. Six grounds of absolute divorce were then provided. Of these four are identical with those just mentioned, except that the term of wilful absence is reduced to three years. In addition there are recognized (5) physical incompetence at the time of the marriage; and (6) sentence with actual imprisonment for violation of the criminal laws of the state, provided application be made during the term of confinement.[408] Two years later a new plan was adopted. Absolute divorce was permitted for the six causes allowed in 1822; and partial divorce, which had not existed by statute for twenty years, was revived; the courts, on the same six grounds, being authorized, instead of full dissolution of wedlock, to decree separation from bed and board, or merely alimony, according to justice and the circumstances in each case.[409] This provision, however, was short-lived; for in 1833 partial divorce was a second time abolished.[410]
Thus matters stood until 1853, when a measure appeared by which the law was much relaxed in several important respects. Jurisdiction, which since 1804 had remained solely in the supreme tribunal of the state, was now vested in the several courts of common pleas. In addition to the six grounds for full divorce already created, four new causes were recognized. These were (7) fraudulent contract; (8) gross neglect of duty; (9) habitual drunkenness for three years; and (10) a decree of divorce in another state "by virtue of which the party who shall have obtained such decree shall have been released from the obligations of the marriage contract, while the same remains binding upon the other."[411]
These ten causes of absolute divorce are still sanctioned by Ohio law. No provision is made for limited divorce; but there is an "action for alimony, which is in effect a limited divorce, and which may be brought by the wife for any of the following causes," also sanctioned by the act of 1853: (1) adultery; (2) any gross neglect of duty; (3) abandonment without good cause; (4) separation in consequence of the husband's ill-treatment, whether the wife is maintained by him or not; (5) habitual drunkenness; and (6) sentence to imprisonment in a penitentiary, if application be made while the husband is so confined.[412]
Indiana, in 1816, is the next portion of the Northwest Territory to be admitted to the Union. Two years after the attainment of statehood her legislature passed the first divorce statute, granting jurisdiction to the circuit courts. By the enactment full divorce in favor of either spouse when aggrieved is allowed for (1) adultery; (2) matrimonial incapacity; (3) bigamous contract; (4) two years' absence with intent to abandon; (5) desertion and living in adultery; (6) conviction for felony; and (7) in favor of the wife when the husband's treatment of her is extremely barbarous and inhuman.[413] In 1824 an "omnibus" clause was introduced, a full divorce being then allowed on petition of the injured person (8) "in all cases where the court in its discretion" shall deem the same "just and reasonable."[414] These grounds are all sanctioned by the act of 1831.[415] Still another cause was admitted in 1836. The circuit courts are empowered to grant the wife absolute divorce (9) when the husband for two years has been a habitual drunkard, and has failed for "any unreasonable length of time to make provision for his family." By the same act, moreover, a marriage may be dissolved "in all cases where the parties have been guilty of murder, manslaughter, burglary, robbery, grand or petty larceny, forgery, counterfeiting, arson, bribery, perjury, or any other crime" the penalty for which on conviction is "imprisonment at hard labor in the penitentiary."[416] But, apparently, this is meant to be a restatement of the sixth cause above given.[417]
Only two years elapsed before a new general statute was adopted, authorizing full divorce on eight grounds. Six of these correspond to the first, second, sixth, seventh, eighth, and ninth causes already sanctioned. Bigamous marriage and desertion with adultery no longer appear as causes; while the fourth ground, as above enumerated, is so modified as to require a separate statement for the husband and wife respectively. The husband (7) is allowed a full divorce for two years' absence of the wife with intent to abandon; and the wife is granted the same relief (8) for like absence of the husband, "and also for any other cause or causes"—a most singular legislative freak.[418] In 1843 this vicious clause was dropped. Abandonment for two years is now made a cause of divorce in favor of either person, thus reducing the number of legal grounds to seven. At the same time, in modification of a cause already existing, the wife is allowed a petition on account of "cruel and inhuman treatment" by the husband, "or when his conduct towards her has been such as may render it unsafe and improper for her to live with him." The other five causes sanctioned by the statute of 1838 are re-enacted without change.[419] A relaxation of the law takes place in 1849. One year's abandonment is declared sufficient to constitute a cause; but in such case the court is especially empowered, in its discretion, to grant a divorce, waiving all objections in regard to time of separation, if it deems a reconciliation "hopeless."[420]
A pause of three years next ensues before the lawmaker resumes his tinkering with the causes of divorce. The act of 1852 admits the seven general grounds, as these had existed since the change in 1849; but with two important modifications. For now "habitual drunkenness," without reference to the term during which it has existed, and cruel treatment, each on the part of either husband or wife, are constituted reasons for dissolving the marriage bond. By the same law a divorce for adultery is denied when there has been (1) connivance; (2) voluntary cohabitation after knowledge of the offense; (3) neglect to petition within two years; or (4) when the petitioner is guilty of the same crime.[421] Seven years later the time of abandonment, to constitute a cause, was reduced to one year, the court being thus deprived of its discretionary power to grant a divorce for desertion during a shorter period.[422]
Finally the long series of enactments defining the grounds of absolute divorces came to a halt in 1873, when the law of Indiana in this regard took its present form. The superior and circuit courts, on petition of either spouse, are granted jurisdiction. Three very important and beneficial amendments, producing a marked decrease in the number of divorces annually granted, are now made. The term of abandonment is increased from one year to two years; "failure of the husband to make reasonable provision for his family" is changed to such failure for a "period of two years;" and, most significant of all, the omnibus clause, existing since 1824 and rephrased in 1838, providing that divorces may be granted "for any other cause" which the court shall deem "reasonable and proper," is stricken out.[423] As a result, the marriage tie may now be dissolved for (1) adultery; (2) impotence existing at the time of the marriage; (3) abandonment for two years; (4) cruel and inhuman treatment; (5) habitual drunkenness; (6) failure of the husband to make reasonable provision for his family for two years; (7) the conviction of either person, in any country, subsequent to the marriage, of an infamous crime. Until very recently limited divorce was not recognized in Indiana; but a married woman might bring action for the support of herself and infant children in the following cases, being analogous to those sanctioned by the Ohio law: (1) when the husband shall have deserted his wife, or wife and children, without leaving sufficient provision for support; (2) when he shall have been convicted of felony and imprisoned in the state prison, not leaving his wife, or wife and children, the same provision; (3) when he is a habitual drunkard and by reason thereof becomes incapacitated or neglects to provide for his family; or (4) when he renounces the marriage covenant, or refuses to live with his wife in the conjugal relation, by joining himself to a sect or denomination the rules and doctrines of which require such renunciation or forbid a man and woman to dwell and cohabit together in the conjugal relation according to the true intent and meaning of the institution of marriage.[424] A statute of 1903 authorizes separation from bed and board "for a limited time" in case of (1) adultery; (2) "desertion, or where the wife is plaintiff, neglect or refusal to suitably provide for her, covering a period of six months;" (3) habitual cruelty of one party, "or such constant strifes of both parties as render their living together intolerable;" (4) habitual drunkenness, "or the confirmed and excessive use of morphine, cocaine, or any other drug;" (5) gross and wanton neglect of conjugal duty for six months.[425]