A History of Matrimonial Institutions, Vol. 3 of 3

by George Elliott Howard

The act under discussion was conservative in another important respect. Divorce from bed and board, which had crept into the judicial practice toward the close of the provincial era, was now allowed either partner by statute on the one ground of "extreme cruelty." Two new causes were added twenty-five years later. By the act of 1786, it will be observed, desertion and long absence, admitted during the earlier period as sufficient causes for dissolving the marriage bond, are not mentioned for either kind of divorce.[9] But in 1811 it was enacted that the wife may be divorced a mensa et thoro, whenever the husband "shall utterly desert" her, or whenever, "being of sufficient ability thereto," he shall "wantonly and cruelly neglect or refuse to provide suitable maintenance for her."[10] In all cases of separation from bed and board, as provided in 1829, the court may assign the wife all the personal estate which the husband received through the marriage, or such part of it as may seem just under the circumstances; while "all promissory notes and other choses in action" belonging to her before the marriage, or made payable during the coverture to her alone, or jointly with the husband on account of property belonging to her or debts due to her before the marriage, and all legacies to her, and personal property, which may have descended to her, as heir, or be held for her in trust, or in any other way appertaining to her in her own right, none of which things enumerated have been reduced to possession by the husband before the libel was filed, shall be and remain her separate property; and she is empowered to bring suit to recover it "in the same manner as if she were a feme sole."[11] No further important change[12] in the law appears to have been made before 1870, when divorce from bed and board was abolished.[13]

Chief interest, therefore, centers in the history of divorce from the bond of wedlock. To the two grounds of dissolution originally permitted new causes were added from time to time. Thus in 1835 the confinement of either spouse at hard labor under penal sentence for a period of seven years or more is declared sufficient for such a divorce; and a pardon granted to the guilty person will not work a restoration of conjugal rights.[14] Utter and wilful desertion for a term of five years came next in 1838;[15] and in 1850 a fifth cause, probably relating to the Shakers, was added. If either partner, it is declared, shall leave the other without consent and join a "religious sect or society that believes, or professes to believe, the relation between husband and wife void or unlawful," and there remain for three years, such act shall be deemed in behalf of the injured person a "sufficient cause of divorce from the bond of matrimony."[16]

A measure of fundamental importance makes its appearance in 1867. By it the divorce system of Massachusetts is completely reorganized. Not only is the way opened for presently doing away with separation from bed and board, but provision is made for suspending final action in any suit for dissolution of marriage by a device similar to that adopted in the English statute of 1860. The distinction between the "decree nisi" and the "decree absolute" was then introduced. "Decrees for divorce from the bond of matrimony may in the first instance be decrees nisi, to become absolute after the expiration of such time, not being less than six months from the entry thereof, as the court shall, by general or special orders, direct. At the expiration of the time assigned, on motion of the party in whose favor the decree was rendered, which motion may be entertained by any judge in term or vacation, the decree shall be made absolute, if the party moving shall have complied with the orders of the court, and no sufficient cause to the contrary shall appear." The orders of the court referred to require the person in whose favor a decree nisi has been rendered to publish at his own cost, in one or more newspapers, designated by the court, the fact of granting of the decree together with its terms and such other notice as the court may direct.[17] It will be observed that there is no express provision for "intervention," as in England by a private citizen or the Queen's proctor.[18] The institution of the decree nisi gave the legislator thereafter a great deal of trouble. Statute after statute was enacted to alter, extend, or repeal its provisions. These it would be useless to dwell upon, even if the import of some of them could readily be understood.[19] After thirty years of tinkering and experiment, the law now stands in substance about as it was first made. By the act of May 2, 1893, all decrees of divorce are in the first instance to be decrees nisi, without further proceedings "to become absolute after the expiration of six months;" unless the court on the application of some interested person otherwise orders.[20] The requirement of publication in the newspapers at the expense of the petitioner is not retained.

The introduction of the decree nisi in 1867, and the abrogation of the decree from bed and board in 1870, led at once to an extension of the causes of divorce from the bond of marriage. In addition to the five grounds already existing, a statute of the last-named year authorizes a full divorce for "extreme cruelty," "gross and confirmed habits of intoxication contracted after marriage," or "cruel or abusive treatment by either of the parties," and "on the libel of the wife, when the husband, being of sufficient ability, grossly or wantonly and cruelly refuses or neglects to provide suitable maintenance for her." Several of these causes, it will be noticed, had already existed as grounds for separation from bed and board, and were now merely transferred to full divorce. "Utter desertion," first allowed in 1838, likewise appears in this act as a new cause; but it is so only for the reason that all limitation as to the term of desertion is now omitted.[21] But in 1873 the period was fixed at three years,[22] and this term is retained in the present law.[23] Finally in 1889 dissolution of wedlock is granted for "gross and confirmed drunkenness" caused "by the voluntary and excessive use of opium or other drugs."[24] By the omission of one, the modification and combination of others, these ten causes have now been reduced to seven. By the present law a full divorce, to be a decree nisi in the first instance, may be granted for (1) adultery; (2) impotency; (3) utter desertion for three years; (4) gross and confirmed habits of intoxication caused by the voluntary and excessive use of intoxicating liquors, opium, or other drugs; (5) cruel and abusive treatment; (6) on the libel of the wife, if the husband, being of sufficient ability, grossly or wantonly and cruelly refuses or neglects to provide suitable maintenance for her; (7) when either spouse has been sentenced to confinement at hard labor for life or for five years or more.[25]

The century's legislation in the other New England states regarding the causes of divorce shows important differences in details and in the rate of progress; but the general tendency and the final result are much the same. For a short period previous to 1784 the legislature of New Hampshire exercised the right of granting divorces from the marriage bond.[26] The constitution of that year, following the example of Massachusetts, put a stop to the practice.[27] So by the act of February 17, 1791, which determined the general character of the divorce laws of that state for half a century, jurisdiction is vested in the superior court of judicature, where, under sanction of the constitution[28] of 1792, it remained until 1855, when it was transferred to the supreme court.[29] In the outset the laws of New Hampshire are more liberal in this regard than those of Massachusetts, and the development is more rapid. By the act of 1791, just mentioned, a divorce a vinculo may be granted for the impotency, adultery, extreme cruelty, or three years' absence of either spouse; and to the wife when the husband wilfully abandons her for three years, refusing to provide.[30] But, it should be observed, separation from bed and board is not recognized. This law stood unaltered until 1839, when, in addition to the causes already assigned, a divorce is authorized for three years' wilful desertion or refusal to cohabit by either person, if the cause continues at the time of petition.[31]

The next year a broad step in advance was taken. In addition to the existing causes, five[32] new and important grounds were at once introduced. A divorce may be granted in favor of the "innocent party" when the other is convicted and actually imprisoned for a felony; or becomes a habitual drunkard and so continues for three years; or "so treats the other, as seriously to injure health, or endanger reason;" or "when the conduct of either party shall be so gross, wicked and repugnant to the marriage covenant, as to occasion the separation of the other for the space of three years."[33] This last clause is omitted from the revised statutes of 1842. But among the twelve grounds there enumerated two new ones appear. As by the Massachusetts law of 1850, divorce is now granted either person when the other joins and remains three years with a religious sect or society "professing to believe the relation of husband and wife unlawful;" or to the "wife of any alien or citizen of another state, living separate," when she has resided in the commonwealth three years, the husband "having left the United States with the intention of becoming a citizen of some foreign country, and not having during that time" returned to "claim his marital rights," nor having made suitable provision for her support.[34] With the subsequent addition of two more causes the tale is complete. Since 1854 any "citizen" may claim a divorce when without his consent the wife willingly absents herself "for three years together;" or when in like manner she has "gone to reside beyond the limits" of the state and there remained ten years together without returning to claim her marriage rights.[35] These fourteen general grounds of divorce still appear in the statute-book;[36] but it should be noted that not less than seven of them have to do with absence or desertion of one or the other of the persons under various conditions.

At the close of the colonial era and until 1850, it will be remembered,[37] the legislature of Connecticut continued to grant divorces on various grounds; but jurisdiction in most cases was exercised by the superior court,[38] where it still remains.[39] Legislative divorce is not prohibited by the constitution; and it appears to be still permitted by the law. A recent act provides that "whenever any petition for divorce shall have been referred to any committee of the general assembly, such committee may give to the attorney general reasonable notice of all hearings on such petition, and he shall thereupon take such action as he shall deem to be just and equitable in the premises, and he shall appear before such committee ... whenever in his opinion justice so requires."[40] Since 1667, as elsewhere seen, divorce from the bond of wedlock had been granted for adultery, fraudulent contract, wilful desertion for three years, and for seven years' absence without word. To these grounds, in 1843, "habitual intemperance" and "intolerable cruelty" were added.[41] Three more new causes followed in 1849. Divorce was then sanctioned for sentence to imprisonment for life; "infamous crime involving a violation of conjugal duty;" and for "any such misconduct ... as permanently destroys the happiness of the petitioner, and defeats the purpose of the marriage relation."[42] The remarkable "omnibus" clause last quoted was not repealed until 1878.[43] The number of causes was thus reduced to eight, and thereafter no further changes seem to have been made.[44]

Throughout the century the supreme court of Rhode Island has exercised jurisdiction in cases of divorce and alimony,[45] although until 1851, as elsewhere explained, the legislature retained a share in this power. At the beginning of the period a marriage might be dissolved for (1) impotency, (2) adultery, (3) extreme cruelty, (4) wilful desertion for five years, (5) the husband's neglect or refusal to provide, or (6) for any other "gross misbehaviour and wickedness in either of the parties, repugnant to and in violation of the marriage covenant."[46] The last clause is surely broad enough, and no further ground of separation was found necessary until 1844. In that year (7) "continued drunkenness" is added.[47] Seven years later the court is given discretionary power to dispense with proof of full five years' desertion and to grant relief in less time.[48] Finally the extreme limit of modern legislation is reached in allowing (8) a decree when either spouse is guilty of "habitual, excessive, and intemperate use of opium, morphine, or chloral."[49] In 1902 the fifth cause in the above series was modified, a full divorce being then authorized for the husband's neglect and refusal to provide his wife with necessaries for at least one year.[50] So the century, which began with six grounds, ends with but two new causes for the dissolution of wedlock. In the meantime, however, we have a rare example of reactionary legislation. In 1882 the policy of nearly two hundred and fifty years was reversed.[51] It was then provided that in future "divorce from bed, board, and cohabitation, until the parties be reconciled, may be granted for any of the causes for which by law a divorce from the bond of marriage may be decreed, and for such other causes as may seem to require the same."[52] This sweeping provision is still in force.[53]

The first word in the history of divorce legislation for Vermont appears in the records of the "assumption" period. In 1779 the "representatives of the freemen" authorize the superior court to grant dissolution of the bond of marriage for the same four causes allowed at that time by the Connecticut laws, but by implication only the aggrieved person is permitted to remarry.[54] This restriction does not appear in the statutes enacted after the attainment of statehood. By these the supreme court may grant either spouse a decree for impotence, adultery, intolerable severity, three years' wilful desertion with total neglect of duty, or for the usual term of long absence unheard of.[55] The same grounds are retained in 1805, but with one important modification. In the case of "intolerable severity" it is left optional with the court whether the decree shall be from bed and board or from the marriage bond.[56] This provision, however, was short-lived, for it seems to have been repealed in 1807.[57] The number of causes of divorce a vinculo in 1839 has increased to six, but one old ground—impotence has given place to two new ones—actual confinement on a criminal sentence for three years or more, and gross, wanton, and cruel neglect of the husband to provide when he is able.[58] By the existing law the same six causes are expressly recognized.[59] But the statute contemplates divorce on still other grounds; for it is provided that libels for causes other than those named shall be tried in the county where the persons or one of them resides.[60] The last word of the period is retrogressive, decrees from bed and board being restored after an interval of almost exactly one hundred years. By the act of November 24, 1896, such separations, "forever or for a limited time," are authorized, as in Rhode Island, "for any of the causes for which a divorce from the bond of matrimony may be declared."[61] Jurisdiction is now vested in the county courts, each held by an assigned judge of the supreme court, who may try questions of fact as well as of law.[62]

Very naturally the first divorce legislation of Maine is based largely upon the contemporary laws of Massachusetts; and her policy in this regard since the attainment of statehood in 1820 has developed on lines parallel to those followed by the parent commonwealth, although there are some interesting divergences in matters of detail. The statutes of 1821 embody the Massachusetts law of 1786, together with such subsequent legislation as was still in force. Jurisdiction is vested in the supreme judicial court. Divorce from the bond of marriage is allowed for the same two causes named in that act. Separation from bed and board for cruelty, utter desertion, and neglect to provide is authorized, just as in Massachusetts after 1811,[63] and this kind of divorce existed until 1883. Three new grounds for dissolving marriage were allowed in 1830. These were five years' wilful desertion, uniting with the society called Shakers, and sentence to state's prison—in each of the latter two cases the term being likewise five years.[64] To these were subsequently added fraudulent contract and three years' habitual drunkenness such as to incapacitate either spouse from taking care of the family.[65]