Page:The New International Encyclopædia 1st ed. v. 06.djvu/384

DIVORCE. 331) DIVORCE. in some of the Eiiropeuu Slates, e.g. in Italy, Spain, and Portugal, and in Austria so far as uicuiIkts oI llif Kuiiian Latliolie Church are con- eorni'il. Divorce reappeared with the Kcfornia- tion. and was part of the programme of the I'reneli Kevoliition; and in the great majority of the European States (and in Austria, as regards MDii-C'al holies) divorces can he obtained at the present time on various grounds — always for adultery and for extreme cruelty, usually for desertion, and in some States on the ground of coiidi innation in criminal i)roeeedings, wlien the condemnation carries with it infamy or degra- dation, and on the ground of incurable in- sanity. Incompatibility, strained relations, un- con(]ueriihle aversion, etc., are grounds usually for separation only; but in .some States a se])aralion obtained on such grounds may, after a term of years, be converted into an absolute divorce. Divorce by mutual consent was per- mitted by the Code Xa])oleon, and also, when the nutrriage was childless, by the Prussian Code of 17'.)4; but divorce on this ground is not per- mitted by the existing legislation of France nor by the German Imperial Code. In the former country the subject is now regulated by legis- lative "act of 1883. The idea that marriage is something more than a private relation, that it is the basis of the existing social order, and that society is interested in its maintenance, finds ex- pression not only in the rule that divorce is to be granted only for cause, but in the practice of making the otlicial who corresponds to the Ameri- can district attorney a party to every proceeding for divorce or annulment of marriage. In England there was no conimon-law juris- diction in matrimonial causes prior to the crea- tion of a divorce and matrimonial court by act of Parliament in 1857. and the ecclesiastical courts, to which that jurisdiction was confided, consistently held the marriage tie to be indis- soluble. Accordingly, before .January 1. 1858, when the Matrimonial Causes Act (20 and 21 Vict., c. 85) went into operation, divorces could be obtained in England (as is still the case in Ireland) only by act of Parliament. It was, in- deed, possible to obtain a declaration of nullity of marriage on the ground of consanguinity, pre- viou-i marriage of one of the parties, mental or physical incapacity, coercion, or fraudulent representations as to the essentials of the rela- tion, as, for example, false impersonation. But the judgment so obtained was not a decree of divorce, but a declaration that the marriage tie between the parties had never really been con- tracted. A wife may now obtain a divorce on the u'ronnil of the husband's incestuous adultery: or of his bigamy with adultery: or of rape: or of sodomy; or of adultery coupled with gross cruelty; or of adultery coupled with desertion wit hunt reasonable excuse for two years. The husband may obtain a divorce on the ground of the wife's adultery. But neither party can ob- tain a divorce on the ground of desertion alone, however long continued. or will a divorce be granted should it appear that hu-hand or wife has been g)iilty of recrimination by committing the same olTense. or that there is collusion be- twfK-n them in order to procure the divorce. Parties also who hae condoned the offense — that is. who after it has been discovered have con- sented again to live together as husband and wife — will not be allowed to obtain a divorce. In order to guard against fraud by parties con- niving to procure a divorce. |)Owcr is given to the t^ueen's proctor, by 23 and 24 Vict., c. 144, to interpose, in case he have reasonable ground to suspect collusion or nrrimination, in order to oppose a petition for divorce. The court may order the husband to pay a divorced wife a cer- tain sum for her maintenance during their joint lives. After decree of divorce the oU'eniling party may marry again, even with the paramour. But it is enacted, 20 and 21 'ict., c. 85, that no clergyman shall be compelled to solemnize the marriage of any person who has bwn divorced. He nuist, however, allow another clergyman, if wiiling to do so, to perform the marriage. By the acts of 1857 and succeeding years, jiarties are also entitled to obtain a judicial separation on the ground of adultery, cruelty, or desertion. Judicial separation is declared to be in place of a separation n mcnsa cl ihoro. A married woman, having obtained a decree of judicial sepa- ration, is declared to be in all respects as a feme sole in regard to any property that she has or may acquire. Even before obtaining a separation, a woman deserted by her husl)and may obtain from the court a protection for any properly she may acquire l)y her own industry. in the I'nitcd States, during the colonial period, the legislative bodies in the .several prov- inces gradually as.sumed the right of granting divorce, and after the Uevolution the system of divorce by legislative enactment became uniform- ly established. Experience of this system prov- ing its defective character, the jurisdiction over divorce cases was generally transferred to the courts of equity', and in many of the State con- stitutions it was distinctly provided that divorce by legislative act should not be permitted. There is no national control over divorce legislation in this country, and, as the States are left to make their own laws regulating the dissolution of marriage, the greatest diversity in their treat- ment of the subject has arisen, sonie of them re- fusing divorce altogether, or granting it only for a single cause, and others going to the extreme of laxity in permitting the dissolution of the marriage bond. This want of uniformity makes it impossible to lay down general principles as to the grounds on which divorce is granted in the I'nilcd Slates as a whole, and a brief outline of the laws re- lating to the subject in the dilTerent States is all that can here be attempted. There are laws granting divorce on certain six-cified grounds in all the conunonwealths except Xew Mexico and Sovilh Carolina. In the latter State divorce is not granted on any grounds whatever, either by courts of justice or by legislative acts, and the results of this state of things offer an inlcroting subject for investigation to those who maintain the strict canonical view with regard to the indissoluble nature of marriage. It has been remarked that the prevalence and partial legal reeo^'iiilion of concubinage are the effects of this attitude toward the divorce question in South Carolina. (Bishop's Mnrrinae and fli- riirci-.) In all the other Slates infidelity Jind vin- lation of the nuirriage vow are recognized as valid ground- for divorce. In New York adultery alone warrants absolute divorce in the eye of the law. Impotence or physical inability in almost all States cither justifies divorce or renders the marriage voidable. Willful desertion is general-