A History of Matrimonial Institutions, Vol. 3 of 3

by George Elliott Howard

Only four years elapsed before the restless lawmaker was again at work. By an act of 1871 a divorce from bed and board or from the bonds of matrimony may be granted (1) for impotence at the time of marriage; (2) "when the female at the time of the alleged marriage was under the age of fourteen years, and the alleged marriage was without the consent of her parents, or guardians, or other persons having the legal custody or charge of her person; and when such marriage was not voluntarily ratified on her part" after the attainment of that age; (3) for adultery; (4) for extreme cruelty by the infliction of grievous bodily or mental suffering; (5) for habitual intemperance; (6) for two years' wilful desertion; (7) for having the ability to provide and failure so to do on account of idleness, profligacy, or dissipation; (8) "when from threatening words or acts, the weaker party feels in danger of bodily injury;" (9) when the consent was obtained by "force, fraud, intimidation, deception, or influence of stronger minds;" (10) for conviction of felony after marriage.[500] Here matters rested until 1877, when the California system, including the six causes and the careful definitions of the code, was adopted.[501] This plan without change is retained in the existing laws of South Dakota;[502] as also in those of North Dakota, except that between 1899 and 1901, following the lead of Idaho, incurable insanity for two years was admitted as a seventh ground of absolute divorce.[503] In neither of these states is partial divorce recognized. The district courts in North Dakota still have original jurisdiction; while in South Dakota authority is vested in the circuit courts within the respective circuits or their subdivisions.[504]

Nevada has likewise closely followed the example of California. Separation from bed and board has at no time been provided for. Bigamous marriages and those within the forbidden degrees of consanguinity are void without decree or other legal proceedings.[505] But since 1875, with one exception, the grounds of absolute divorce have been practically the same as those prescribed by the California code, although they are differently expressed, and there are not the same minute provisions regarding the application of the law and the conditions of action. On complaint of the aggrieved the courts are now authorized to dissolve the bonds of wedlock for (1) impotence at the time of the marriage continuing to the time of divorce; (2) adultery since marriage, remaining unforgiven; (3) wilful desertion for one year; (4) conviction of felony or infamous crime; (5) habitual gross drunkenness, contracted since marriage and incapacitating the offender from contributing his or her share toward the support of the family; (6) extreme cruelty; (7) neglect of the husband for the period of one year to provide the common necessaries of life, unless such neglect is the result of poverty which could not have been avoided by ordinary industry. Thus the laws of Nevada regarding the causes of divorce have been remarkably free from change; for the statute of 1875 in this regard is identical with the original act of 1861, except that by the latter the terms of wilful desertion and wilful neglect to provide are each fixed at two years.[506]

For Alaska the act of Congress does not authorize partial divorce; but marriage may be dissolved for (1) impotency; (2) adultery; (3) conviction of felony; (4) two years' wilful desertion; (5) "cruel and inhuman treatment, calculated to impair health or endanger life;" or (6) habitual gross drunkenness contracted since marriage and continuing one year before the suit.[507]

By the law of Hawaii both kinds of divorce are provided for. Separation from bed and board forever or for a limited time will be granted when either spouse has been guilty of (1) excessive and habitual ill-treatment; or (2) habitual drunkenness; and (3) to the wife for the husband's neglect or refusal to provide her with the necessaries of life. At any time, on joint application of the persons, with satisfactory evidence of reconciliation, the decree of separation may be revoked by the court. According to a unique scheme, the grounds of absolute divorce are arranged in two groups: (1) A marriage will be dissolved, on petition of the aggrieved, when either consort has (a) committed adultery; (b) is guilty of three years' wilful and utter desertion; (c) has been sentenced to imprisonment for life, or for seven years or more, no pardon effecting a restitution of conjugal rights; or (d) has contracted "the disease known as Chinese leprosy, and is incapable of cure." (2) When one of the married persons has been guilty of (a) extreme cruelty; or (b) habitual drunkenness; and (c) when the husband, being of sufficient ability to provide suitable maintenance for his wife, neglects or refuses so to do. But it is especially enacted that if the person applying for a decree "shall not insist upon a divorce from the bond of matrimony, a divorce only from bed and board shall be granted." Jurisdiction is vested in the circuit courts of the circuit where the persons last cohabited as husband and wife; but no divorce for any cause will be allowed if they have never so lived together in the territory.[508]

c) Remarriage, residence, notice, and miscellaneous provisions.—It has been found convenient in the preceding section to trace throughout the period the development of the New York law regarding the remarriage of divorced persons. By the original statute of 1787, it thus appears, the guilty defendant is forever prohibited from marrying again. Under the acts of 1813 and 1827-28 the restriction is limited to the lifetime of the innocent former spouse; and this rule is retained in the present law, although in harmony with the practice elsewhere widely prevailing, the parties to the action are at liberty to renew their matrimonial vows. The defendant, however, may marry again in case the court in which the judgment is given "shall in that respect modify such judgment, which modification shall only be made upon satisfactory proof that the complainant has remarried, that five years have elapsed since the decree of divorce was rendered, and that the conduct of the defendant since the dissolution of said marriage has been uniformly good."[509] At no time, apparently, has any legal check been put upon the immediate remarriage of the successful plaintiff after final decree; and a way has been found by which the guilty defendant may at once contract further wedlock through evasion of the statute. In 1881 the precedent established by Massachusetts in 1829 was followed by the New York court of appeals. It was then decided that when a husband who has been divorced in New York for his adultery "goes into another state for the purpose of evading our law, and there contracts a second marriage during the lifetime of his former wife, and immediately returns to and resides within this state, such second marriage is, nevertheless, valid, and the issue thereof legitimate."[510] On the other hand, it is held that the restraint applies to the remarriage of divorced persons even when the divorce was granted in another state. Thus dower was "denied on a showing that the deceased husband, while a resident of Massachusetts, had been divorced from his wife for his fault and later had removed to New York and married the plaintiff while his former wife was living. It was held that the New York statutes governed whether the divorce was granted in that state or not, so long as the marriage was celebrated in New York."[511] But elsewhere the courts have taken the opposite position, holding that the restraint on remarriage applies only to divorces granted in the state where it is imposed.[512]

During the century the statutes of New Jersey have in effect, though not expressly, allowed either person absolute freedom of remarriage after divorce.[513] A different rule has been followed in Pennsylvania and Delaware. By a law of the former state in 1785, "he or she, who hath been guilty of the adultery, may not marry the person with whom the said crime was committed, during the life of the former husband or wife."[514] This provision is still in force; and, except in the single case specified, the law of that state puts no restriction whatever upon the remarriage of either person after a decree dissolving the marriage tie. Since 1832 with respect to remarriage the law of Delaware has in substance been identical with that of the sister-commonwealth, except that the prohibition of marriage with the paramour is not confined to the lifetime of the former spouse.[515]

By their complete silence on the subject the statutes of Ohio appear always to have allowed either person entire freedom of remarriage after divorce. Since 1831 the same liberty has been expressly granted by the laws of Indiana;[516] except that when the defendant has been "constructively" summoned without other notice than publication in a newspaper, the person obtaining a decree of divorce is not permitted to marry again until the expiration of two years, during which period the judgment may be opened at the instance of the defendant.[517] But by the original act of 1818 the offender is not released from the bonds of matrimony while his former spouse is living.[518] This restriction is maintained by the statute of 1824, unless the court in its discretion, "judging from the circumstances of the case," shall expressly grant a release.[519] In 1825 the legislature of Illinois required the court in a decree of absolute divorce to prohibit the offender from remarrying within two years.[520] After 1827 this provision was dropped;[521] and at present Illinois, like New Jersey, through the remission of the penalty for bigamy allows entire freedom in this regard.[522] Michigan began with a severe rule. The territorial enactment of 1819 forbids the defendant adulterer to wed again until the complainant be actually dead.[523] This provision was not long retained; and the existing statute permits the court to decree that the person against whom any divorce is granted shall not marry again within any period not exceeding two years.[524]

The legislation of the newer states of the Mississippi valley and the Pacific slope discloses the same lack of harmony in dealing with the question in hand. By the laws of Wyoming, Utah, and Nevada either spouse, whether guilty or innocent, is left absolutely free to contract further wedlock as soon as he likes after divorce. At present the same is true of Iowa, although under the early enactments the guilty defendant was forbidden to remarry.[525] In Kansas, by a statute of 1855, the guilty person is restrained from marrying again during five years unless so permitted by the terms of the decree.[526] Between 1859 and 1881 entire freedom was allowed.[527] Subsequently in that state it has been "unlawful for either party ... to marry any other person within six months from the date of the decree of divorcement," or, if appeal be taken, "until the expiration of thirty days from the day on which final judgment shall be rendered by the appellate court." Marriage in violation of this statute is declared bigamy and void.[528] Nebraska since 1885, Oregon since 1862, Washington since 1893, and Minnesota since 1901, have each interdicted remarriage within the same period of six months after a decree of divorce.[529] In Idaho since 1903 the term is "more than six months;" while in North Dakota since 1901 it is but three.[530] Since 1893 Colorado has gone farther, requiring in such a case a delay of one year.[531] The same delay is required in Wisconsin since 1901;[532] while in Montana, since 1895, the innocent person must needs wait two years and the guilty person three years before renewing the marital bond with anyone save the former spouse.[533] South Dakota, when the cause is adultery, still refuses, as in the territorial stage, to permit the guilty defendant to rewed during the lifetime of the innocent plaintiff, unless, indeed, with the latter.[534] In Alaska neither party may marry a third person until proceedings on appeal are ended, or if no appeal be taken, during one year, the statutory term for bringing such action.[535]