The Probert Encyclopaedia of General Information

DIVORCE

Divorce is a separation, by law, of husband and wife, and is either a divorce a vinculo matrimonii, that is, a complete dissolution of the marriage bonds, or a divorce a mensa et thoro (from bed and board), whereby the parties are legally separated, but not unmarried.

The causes admitted by different codes of laws as grounds for the modification or entire dissolution of the marriage contract, as well as the description of tribunal which has jurisdiction of the proceedings, and the form of the proceedings, are various.

Divorce was permitted by the law of Moses, but forbidden in the New Testament, except for unchastity. The early laws of Rome permitted the husband to divorce his wife for adultery and many other alleged offences. The facility of divorce continued, without restriction, under the Roman emperors, but as the modern nations of Europe emerged from the ruins of the Roman Empire, they adopted the doctrine of the New Testament. Marriage, under the Roman Church, instead of a civil contract, came to be considered a sacrament of the church, which it was unlawful to dissolve. The ecclesiastical courts could indeed annul a marriage, but only for a cause that existed at the time the marriage was contracted, such as prior contracts, impotency, etc. For any cause arising after marriage they could only pronounce a divorce a mensa et thoro, which did not leave either party free to marry again, except by papal dispensation.

A divorce a vinculo matrimonii, for any cause arising subsequent to marriage, could formerly be obtained in England only by an act of parliament, and the ecclesiastical courts must have previously pronounced a divorce a mensa et thoro. The act passed in 1857, however, established a new court for trying divorce causes, called the Court for Divorce and Matrimonial Causes, subsequently absorbed into the Probate, Divorce, and Admiralty Division of the High Court of Justice.

In Victorian England, the husband could obtain a divorce for simple adultery; but if the wife is the petitioner, she had to show that her husband had been guilty of certain kinds of adultery, or of adultery coupled with desertion or gross cruelty. Either party could marry again after divorce. A divorce could not be obtained if it appeared that the petitioner had been guilty of the same offence, or that there had been collusion between the parties to obtain a divorce, or if they had condoned the offence by living together as man and wife after discovery. The husband could claim damages from the adulterer, and the court could also order the adulterer to pay the costs of the proceedings, in whole or in part. The act also abolished divorces a mensa et thoro, substituting, however, judicial separations. Since the late 20th century, divorce in Britain England has become a simple affair with either party simply having to claim that the marriage has broken down irretrievably.

A decree for a divorce is always in the first instance a decree nisi. In Scotland, from the time of the Reformation, divorce might be obtained by either party on the ground of adultery, marriage being held to be only a civil contract, and as such under the jurisdiction of the civil courts. Condonation or collusion was sufficient to prevent a divorce from being obtained on the ground of adultery, but not recrimination, that is, a counter charge of adultery. Wilful desertion was also held a valid reason for divorce.

In France divorce was legalized in 1884, with conditions, after having been prohibited for many years.
Research Divorce