A History of Matrimonial Institutions, Vol. 3 of 3

by George Elliott Howard

In 1818, closely following Indiana, Illinois was carved from the bountiful region northwest of the Ohio River. After a year's delay, a divorce law was enacted in 1819; and this, as amended in 1825, authorizes both kinds of separation. Full dissolution of wedlock may be granted for (1) physical incapacity at the time of solemnization; (2) adultery; (3) two years' voluntary and continued absence. Partial divorce is likewise sanctioned for (1) extreme and repeated cruelty in either spouse: or (2) constant and habitual intemperance in either for two years. "But in the latter case it shall be incumbent on the complaining party to show that he or she had performed all the duties of a faithful and affectionate husband or wife."[426]

The act of 1827 is silent as to limited divorce, which has not since been recognized in Illinois. Full divorce may now be granted by the circuit courts, sitting as courts of equity, when either person (1) was at the time of the marriage and still is naturally impotent; (2) had a husband or wife living at the time of the marriage; (3) has since been guilty of adultery; or (4) wilful desertion for two years; or (5) extreme and repeated cruelty; or (6) habitual drunkenness for two years.[427] A step backward was taken in 1832 through the adoption of a kind of omnibus clause. By proceedings in chancery full dissolution of marriage is authorized (7) for all causes of divorce not provided for by any law of the state.[428] Next, after an interval of thirteen years, on the petition of the aggrieved, comes (8) conviction for felony or other infamous crime.[429] This is followed after the lapse of thirty years more by the sanction (9) of absolute divorce when either person "has attempted the life of the other by poison or other means showing malice."[430]

The tale of causes allowed by the present law of Illinois is thus complete. Separation from bed and board is not provided for by statute. In general, chancery process is required. The circuit courts of the respective counties and the superior court of Cook county (Chicago) are clothed with jurisdiction in divorce controversies.[431]

Michigan became a separate territory in 1805, and seven years thereafter the supreme court was granted jurisdiction in both kinds of divorce.[432] By the act of 1819 marriage may be dissolved for adultery in either spouse, when the husband and wife are inhabitants of the territory, or when the marriage was solemnized therein; as also when the injured person was an actual resident of the territory at the time of the offense, and so remains when the bill is filed. When guilty, the wife forfeits her right of dower. On the other hand, the court may grant her a divorce a mensa, forever or for a limited time, (1) for "cruel and inhuman treatment;" (2) for such conduct on the part of the husband "as may render it unsafe and improper for her to cohabit with him and be under his dominion and control;" or (3) when "he has abandoned her and refuses or neglects to provide" for her support.[433]

A different plan appears in 1832. A divorce from the bond of wedlock is now permitted (1) for impotency, and (2) for adultery. Furthermore, the court, in its discretion, is empowered to grant either person a full or a partial divorce (1) for extreme cruelty, or (2) for five years' wilful desertion. By this act jurisdiction is vested in the supreme court and either of the circuit courts of the territory.[434] A statute of the next year retains all these provisions of 1832, except that the term of wilful desertion, to constitute a discretionary ground, is reduced to three years.[435] Five years later, after Michigan became a state, a divorce is made unnecessary when a marriage is void or when the persons contracting it are below the age of consent. At the same time the grounds of separation are reconsidered. Absolute divorce is now authorized (1) for adultery; (2) for impotence; (3) for five years' desertion; (4) for sentence to imprisonment at hard labor for three years or more; and either a full or a partial divorce, on the petition of either spouse, (1) for extreme cruelty; (2) for three years' "utter desertion;" or (3) on application of the wife, when the husband, being of sufficient ability to provide a suitable maintenance for her, "shall grossly or wantonly and cruelly refuse or neglect to do so."[436] In 1844 extreme cruelty, "whether practiced by using personal violence, or by any other means," was substituted for the corresponding clause in the act of 1838.[437] Next, in 1846 and 1847 came swift changes in the law of desertion, but only in their turn to be swept away in 1848.[438] So in 1851 we reach an act by which the grounds of divorce in Michigan have been determined for half a century.

By the existing law, as then enacted, on application of the aggrieved, a full divorce may be decreed by the court of chancery, or by the circuit court of the county where the parties or one of them resides, for (1) adultery; (2) physical incompetency; (3) sentence to imprisonment for three years or more, no pardon to affect the status of the divorced persons; (4) two years' desertion; (5) when the husband or wife shall have become a habitual drunkard; "and (6) the circuit courts may, in their discretion, upon application as in other cases, divorce from the bonds of matrimony any party who is a resident of this state, and whose husband or wife shall have obtained a divorce in any other state." The same tribunals are authorized, in their discretion, to grant either a limited or a full divorce in favor of the aggrieved for (1) extreme cruelty, "whether practiced by using personal violence, or by any other means;" (2) utter desertion for two years; or (3) on complaint of the wife for the husband's neglect to provide, as by the law of 1838.[439]

Wisconsin, the remaining[440] portion of the region originally governed by the ordinance of 1787, was erected into a separate territory in 1836. Its divorce legislation, which in its general outline is similar to that of Michigan, began in 1838-39, when the district court of each county was given jurisdiction in both kinds of separation. The causes of absolute divorce then recognized are (1) impotence; (2) adultery. Those of partial divorces are (1) extreme cruelty; (2) two years' wilful desertion; (3) habitual drunkenness; (4) abandonment of the wife by the husband, or "his refusal or neglect to provide for her."[441]

In 1849, the year following the attainment of statehood, was adopted a new statute by which the foundation of the present system was laid. By it, as under the present law, a marriage is declared absolutely dissolved without any decree of divorce or legal process whenever either spouse is sentenced to imprisonment for life; and a pardon is not to effect a restoration of conjugal rights. The circuit courts are granted jurisdiction. Both full and partial divorce are provided for. Absolute divorce is allowed for (1) adultery; (2) impotence; (3) sentence of either spouse to imprisonment for a period of three years or more, no pardon working a restoration of conjugal rights; (4) wilful desertion for one year next preceding the commencement of the action; (5) when the treatment of the wife by the husband has been "cruel and inhuman, whether practiced by using personal violence, or by any other means," or "when the wife shall be guilty of like cruelty to her husband or shall be given to intoxication;" (6) when the husband or wife shall have been a habitual drunkard for the space of one year immediately preceding the filing of the bill. To these grounds was added as a cause in 1866: (7) voluntarily living entirely separate for the five years next preceding the commencement of the action.[442] So the law of absolute divorce remains at the present time, all attempts to make insanity a permanent ground having thus far failed.[443]

The history of partial divorce in Wisconsin is soon told. The provisions of the act of 1849 are still in force. The causes of separation from bed and board, forever or for a limited time, there recognized are (1) the fourth, fifth, and sixth grounds of full divorce above specified; (2) extreme cruelty of either spouse; (3) on complaint of the wife when the husband, being of sufficient ability, shall refuse or neglect to provide for her; or (4) when his conduct toward her is such as may render it unsafe and improper for her to live with him. It is expressly declared that a divorce from the bond of matrimony may be decreed for either of the three causes last named, "whenever, in the opinion of the court, the circumstances of the case are such that it will be discreet and proper to do so." From the somewhat awkward arrangement of its provisions, therefore, the general effect of this statute appears to be that a full divorce may be granted for any ground recognized by it, provided the court deems it prudent to exercise its discretionary authority. Furthermore, it must be noted that by the existing law, just as in 1849, the circuit court is empowered to allow separate maintenance when a partial divorce is denied.[444]