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Divorce (in Civil Jurisprudence)

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Divorce is defined in jurisprudence as "the dissolution or partial suspension by the law of the marriage relation" (Bouvier's Law Dictionary). Strictly speaking, there is but one form of absolute divorce, known, under the name derived from the civil and canon law, as divorce a vinculo matrimonii; i.e., from the marriage tie. In the states where it is administered this form of divorce puts an end legally to the marriage relation. There is, however, a limited form of divorce which is, more accurately speaking, a suspension, either for a time or indefinitely, of the marriage relation, and is known as divorce a mensâ et toro, or from bed and board. In addition, in some states courts grant decrees declaring marriages absolutely void, ab initio, i.e., from the beginning. Such marriages never having been valid, the parties cannot be said to have been divorced; however, proceeding for nullity are frequently provided for under divorce statutes.

Pre-Christian divorce legislation among the Hebrews, Greeks, and Romans

Before the adoption of Christianity as the state religion of the Roman Empire, it would appear that divorce in some form existed among all ancient peoples from whom European civilization is derived. Among the Hebrews no precedent for divorce can be found prior to the Mosaic Law. It became frequent afterwards, though it would seem that the husband alone possessed the power, at least until the reign of Herod. Divorce was prevalent among the Greeks, especially in Athens, but the party suing had to appeal to the magistrate, state the grounds of complaint, and submit to his judgement; if the wife was the prosecutor, she was obliged to appear in person. The lax customs of Spartans made divorce rare. Among the Romans the law of Romulus permitted divorce to men, but refused it to women. Adultery, poisoning of children, and falsification or counterfeiting of keys, were sufficient grounds. While divorce was so far free that there was no one authorized by the civil power to oppose it, this freedom was restrained by the moral feeling of the people and their respect for the marriage bond. It was necessary to consult the family council and there was fear of the authority of the censors. There were three forms of marriage among the Romans; the confarreatio, which was celebrated with certain highly religious ceremonies peculiar to that form of wedding; the conventio in manum, effected by a simulated purchase (coemptio), a much more simple ceremony; and the usus or prescription, where, after living with her husband for one year without being absent for three days, the woman came, and in the other forms of marriage, in manum mariti, that is to say, under the control of her husband. No instance of divorce is known before A.U.C. 520 or 523. It is thought by many that this was the first instance of divorce under the Roman Republic, but it would seem probable that it was the first divorce for the special purpose of retaining the wife's dower (dos). This is the suggestion of Becker, who points out that the divorce of Antonius took place in A.U.C. 447, and states that other proof exists that in much earlier times divorce was properly established and strictly ordained by laws. He quotes also from Cicero (Phil., ii, 28) where he says jokingly of Antonius, who had dismissed his wife Cytheris under the same formalities as those of divorce, "that he commanded her to have her own property according to the Twelve Tables; he took away her keys and drove her out."

The causes of divorce on the part of the woman were capital offences, adultery, and drinking. After the Punic wars the number of divorces reached scandalous proportions. Sulla, Cæesar, Pompey, Cicero, Antony, Augustus, and Tiberius all put away their wives. Under Augustus an effort was made to curb the licence of divorce. In the interest of publicity that emperor made it necessary for the party seeking a divorce to make his declaration in the presence of seven witnesses, all Roman citizens of full age. Divorce remained, however, a private legal act. Women could obtain divorce without any fault of their husbands. Under the Roman law of the early imperial period, there was a separation pronounced, first, between parties whose marriage engagement was not legally contracted; second, where parties were separated when the contract of espousals had been made but not consummated by the actual marriage. This was known as repudium. Divortium was a separation of persons already married, and included divorce a mensâ et toro and a vinculo matrimonii.

Imperial Christian legislation

In 331 Constantine the Great restricted the causes for divorce to three on the part of the man, viz., if he was a murderer, a poisoner, or a robber of graves;and three on the part of the woman, viz., if she was an adulteress, a poisoner, or a corrupter of youth. Among soldiers an absence of four years was sufficient to entitle the petitioner to a divorce. This edict was ratified by Theodosius the Great and Honorius. Under Justinian several reasons for divorce were added, and liberty of divorce by mutual consent was restored by his nephew Justin (565-78). No change was now made in the Roman law until after a lapse of 340 years, when Leo the Philosopher (886-912) made a collection of laws known as the "Libri Basilici", from which he excluded the edicts of Justin.

English legislation

According as Catholic doctrine penetrated more profoundly the medieval life, the laws of European nations were gradually accommodated to its demands. In this way, for example, the teaching of the Council of Trent (1563), which anathematized the error that matrimony could so far be dissolved by divorce that it was lawful to marry again, was universally accepted among the nations adhering to the Catholic Church. This council, however, introduced thereby no essential change in the divorce law of the Church. Originally, under the common law of England, there was no jurisdiction on the subject of divorce excepting in the ecclesiastical courts, they having jurisdiction in all matters relating to marriage and divorce, the restitution of conjugal rights, suits for limited divorce and for annulment of marriage. This followed from the Catholic doctrine that marriage, being a sacrament, could not be dissolved; for the same reason any question relative to its validity or to a suspension of conjugal relations must necessarily pertain to the ecclesiastical courts. The ecclesiastical law of England, though originating differently from the other branches of the common law and distinguished by special rules, was part of the unwritten law of the State, just as what are technically called the common law, the law of admiralty, and equity.

The Protestant Reformers rejected the sacramental theory of marriage, and agreed that absolute divorce should be granted for adultery and for malicious desertion, and that the innocent party might then remarry. As they also rejected the jurisdiction of the ecclesiastical courts it was for some time a question among them whether marriage was dissolved ipso facto by the commission of one of these offences, or whether it was necessary to have the dissolution declared by public authority. Luther recommended that parish priest as the proper tribunal. Appeals were sometimes taken to the prince or sovereign. Gradually "consistorium courts" were created, of both lay and ecclesiastical members, under sanction of the civil power. In England under Henry VIII, after his separation from the Catholic Church, the law relative to divorce remained practically unchanged. An effort was made in the time of Edward VI to secure the adoption of a new code of ecclesiastical laws, drafted mainly by Cranmer, under which separation a mensa et toro was not recognized and complete divorce was granted in cases of extreme conjugal faithlessness; in cases of conjugal desertion or cruelty; in cases where a husband not guilty of desertion of his wife, had been several years absent from her, provided there were reason to believe him dead; and in cases of such violent hatred as rendered it in the highest degree improbable that the husband and wife would survive their animosities and again love one another. Divorce was denied when both parties were guilty of unfaithfulness, and when only one was guilty the innocent party might marry again. The ecclesiastical court was to decide all questions concerning these causes. It is said by Howard (Hist. of Matrim. Institutions, p. 80) that the principles of this code, known as the "Reformatio Legum", were carried out in practice, though not enacted into law. He adds that "according to the ancient form of judgment divorce was probably still pronounced only a mesa et thoro; but whatever the shape of the decrees, there is strong evidence that from about 1548 to 1602, except for the short period of Mary's reign, 'the community, in cases of adultery, relied upon them as justifying a second act of matrimony'". He says also that throughout nearly the whole of Elizabeth's reign new marriages were freely contracted after obtaining divorce from unfaithful partners. However, in 1602 the Star Chamber pronounced a marriage invalid which had been contracted after separation from bed and board by the degree of an ecclesiastical judge (Foljambe's case, 3 Salk. 138).

Following this decision the canon law was administered in the English spiritual courts with such rigour that it required an Act of Parliament to permit a remarriage after divorce. In the tenth year of James I (1613) an Act was passed to restrain remarriage by one party while the other was alive, excepting, however, cases where sentences had been pronounced by an ecclesiastical courts. There were some cases where, after sentences had been pronounced by an ecclesiastical court, a second marriage was upheld, but the decisions are generally to the effect that a perfect marriage cannot be dissolved excepting by death. Oughton says (tit. 215) "that the marriage tie once perfected cannot be dissolved by man, but only by natural death. The parties may be separated, but they remain man and wife". The Puritans of England strongly advocated the right of divorce, but without effect, and until 1857 there were no English statute which permitted the granting of a decree of absolute divorce by any court, the only jurisdiction being vested in Parliament. Precedents of divorce by Parliament strictly so called are not found earlier than 1698, but it came to be understood that if a divorce a mensâ had been granted by the spiritual court, a divorce would be granted by Parliament absolutely dissolving the marriage, though only for the cause of adultery on the part of the wife. By the Act of 1857 the entire jurisdiction in matrimonial questions was transferred to a new civil court for divorce and matrimonial causes, and since the judicature Act of 1873 this jurisdiction has been vested in the probate, divorce, and admiralty division of the High Court of Justice. Its power is restricted, however, to England alone. The principles upon which divorce legislation may be based and which may be traced in the legislation by those countries that permit divorce, are stated by Bishop (Marriage, Divorce, and Separation, §46, ed. of 1891) as follows: -

"Matrimony is natural right, to be forfeited only by some wrongful act. Therefore the government should permit every suitable person to be the husband or wife of another, who will substantially perform the duties of the matrimonial relation; and when it is in good faith entered into, and one of the parties without the other's fault so far fails in those duties as practically to frustrate its ends, the government should provide some means whereby, the failure being established and shown to be permanent, the innocent party may be freed from the mere legal bond of what has in fact ceased to be marriage, and left at liberty to form another alliance. The guilty party would have no claim to be protected in a second marriage; and whether it should be permitted to him or not is a question, not of right with him, but of public expediency, upon which there is considerable diversity of opinion."

Modern European legislation

A full collection of laws and statistics relating to marriage and divorce in European countries will be found in the report of the United States Commissioner of Labor Carroll D. Wright, for 1889. It is therein stated that "prior to 1868 the ecclesiastical courts had in most of the countries named more or less complete jurisdiction over matrimonial causes, but the civil courts have now exclusive jurisdiction over such matters in all of them". In Austria-Hungary absolute divorce is not allowed to members of the Catholic Church. Prior to 1 January, 1876, all the cantons of Switzerland had their own peculiar laws of divorce, but subsequent to that date a general law governing the subject took effect. In Germany perpetual separation equivalent to limited divorce was abolished throughout the empire, and the causes for such separation were made causes for absolute divorce. In Hungary divorce has been legal for Protestants since 1786 and for Hebrews since 1863. The laws of their respective churches apply to Latin Catholics, Greek Catholics, and Orthodox Greeks. Question of divorce or validity of marriage among Protestants are subject to the jurisdiction of the civil courts. Excepting for Protestants and Hebrews, the ecclesiastical court of other bodies have jurisdiction. In case of mixed marriage the court of the defendant's confession has jurisdiction. In Italy, Spain, and Portugal, still Catholic countries, no absolute divorce is permitted. In Argentina, Bolivia, Brazil, Chile, Columbia, Ecuador, Paraguay, Peru, Uruguay, Mexico, and Cuba, limited divorce alone is permitted.

The following causes in Austria and in Hungary for absolute divorce are typical: in Austria, adultery; commission of a crime punishable by five years imprisonment; malicious abandonment or non-appearance after one year's solicitation where the absentee's residence is known; assault endangering life or health; repeated cruelty; unconquerable aversion, on account of which both parties demand a divorce. In the last case a limited divorce or separation from bed and board must first be obtained. In Belgium, where the husband is at least twenty-five years of age and the wife twenty-one, and the parties have been married two years or longer, divorce may be obtained by mutual consent on certain terms and conditions, but must be approved by the courts. In France divorce was introduced by the law of 1792. This law was modified in 1798 and in 1803 (Code Napoléon), was subsequently abrogated in 1816, and reintroduced in 1884; the grounds of divorce being adultery of either party; excesses, cruelty, grave injury inflicted by one spouse on the other; condemnation to infamous penalty of either of the spouses; mutual and persevering agreement of the wedded to separate, if said consent is expressed and established as prescribed. By recent legislation, after a lapse of a fixed period of time, a decree of separation can be changed into a judgement of divorce on the application of either of the parties. (Civil Code., Sec. 307). In the German Empire perpetual judicial separations have been abolished, and all subjects of the empire, without regard to their religious status may avail themselves of the laws of divorce which exist in their respective states. In Prussia there are seven causes known as major causes for divorce and six as minor causes. Among the major causes are: false accusations of serious crimes preferred by one of the parties against the other, and endangering the life, honour, or office of the other spouse; among the minor causes are: insanity, disorderly conduct or mode of living, refusal of maintenance or support by the husband. It may be noted that in the divorce laws of European states there exists much similarity as regards the causes of divorce. In Scotland divorce was granted for adultery and malicious desertion; the former since 1560; the latter since 1573. The injured party has the right to choose either a judicial separation or an absolute divorce. In Ireland the civil courts have no jurisdiction to grant decrees of absolute divorce. In Canada exclusive authority was conferred upon the Parliament by the Britain North America Act of 1867 (Sec. 91). At that time courts of divorce existed in Nova Scotia, New Brunswick, Prince Edward Island, and British Columbia, and they still continue to exercise their functions. Excepting in Prince Edward Island, the divorce courts appear to have been modelled upon the England court of divorce and matrimonial causes. A court of divorce and alimony was established in Prince Edward Island as early as 1836. In other provinces of Canada no divorce court has ever been constituted and divorces are granted only by special Act of Federal-Parliament. The courts of Quebec, however, can grant séparation de corps under the English divorce court practice and annul marriage on the ground of impotence.

In Australia, at the time of the formation of the federal Commonwealth, there were divorce courts in all or almost all of the constituent states. Under the Constitution (Act 63-64, Vict., ch. xii, part V, Sec. 51), power was granted to the Parliament of the Commonwealth of Australia, comprising the states of New South Wales, Victoria, South Australia, Queensland, Tasmania, and Western Australia, with respect to divorce and matrimonial causes and in relation to parental rights and the custody and guardianship of infants. The object of this subsection is stated to have been to avoid "the great mistake made by the framers of the Constitution of the United States of America, who left the question to the states to deal with as they respectively thought proper" and "to provide for uniformity in the law of divorce" (Quick and Garran, Aust. Const., pp. 262-609). The local statutes in the various states still prevail, however, with the right of appeal to the High Court with respect to judgements of the Supreme Court of a state (Act of 1903, 2 Com. Stat., p. 148). In New Zealand, which does not form a part of the Australian Commonwealth, divorce is allowed for adultery on the part of the wife, and adultery with certain aggravating circumstances, or with cruelty, on the part of the husband (New Zealand Statutes, Vol. I, p. 229).

Divorce in the United States

Colonial Period (1607-1787)

At the time of the settlement of the various colonies which subsequently declared their independence of Great Britain, there were no ecclesiastical courts; as in England, therefore, the practice of special acts of legislature obtained. Sometimes it was in the form of a private statute directly dissolving the marriage; sometimes the court was empowered to investigate the cause and grant the divorce if the complaint was sustained. There are many instances of legislative divorces granted in the New England colonies, all being divorces a vinculo. Adultery and desertion were sufficient reasons, though male adultery would require additional circumstances. In the Southern colonies there was no court having jurisdiction to grant divorce, though in some of them an appeal for alimony would be considered in a court of equity. Under the Dutch government of New York divorce jurisdiction was exercised by the courts for absolute, as well as for limited, separation, but when the English took possession of the colony, this jurisdiction was no longer recognized. In Pennsylvania under the "Great Law of 1682" divorce was authorized for adultery. The legislature also granted divorces. In New Jersey there was no divorce jurisdiction granted the courts. It may be said, therefore, that outside of New England during the colonial period there was no such thing as a judicial divorce.

From 1787-1906

The Constitution of the United States does not grant the Federal Government any power over the subject of divorce. In this matter, therefore, Congress can legislate only for the District of Columbia and for the territories. The organic acts creating the territories give power to their legislatures over all "rightful subjects of legislation not inconsistent with the constitution of the laws of the United States"; special and general divorce laws are, therefore, within the power of territorial legislature, but by the Act of 30 July, 1886, all special divorce acts have been expressly forbidden. The various states of the Union succeeded to the full sovereign rights exercised by the Parliament of England over all subjects related to marriage and divorce, but in the absence of special divorce statutes, there being no tribunal having jurisdiction, the law would remain the same as in the colonies prior to the Revolution. However, all states of the Union have adopted divorce statutes, excepting the South Carolina, and have clothed the courts with full jurisdiction to administer relief. In most of the states and territories divorces a vinculo and a mensâ et toro are provided for, and in some of the states courts of equity take jurisdiction over special proceedings for a decree of nullity of marriage. In some states, however, decrees a mensâ are expressly forbidden. The causes for which decree may be granted vary from single cause of adultery on the part of either husband or wife (law of New York and the District of Columbia) to nine separate causes in the State of Washington, the last being known as the "omnibus provision", which permits a divorce for any other cause deemed by the court sufficient, provided that the court shall be satisfied that the parties can no longer live together. In most of the states there is no restriction upon the parties remarrying after divorce, though in some, as in New York, the court may forbid the guilty party to remarry during the lifetime of the innocent, and in others, as in Pennsylvania, marriage of the guilty party with a paramour during the lifetime of the innocent party is null and void.

Great uncertainty as to the effect of the divorce statutes of the different states has arisen where relief has been sought by a party whose husband or wife was resident of a different state from that in which the proceeding was brought. While it is a fundamental principle that the courts of any state have entire control over the citizens of that state in divorce proceedings, a different question arises where the husband is a resident of one state and the wife of another. The English doctrine that the domicile of the husband is that of the wife, irrespective of where she may actually be living during coverture, does not prevail in the United States. For the purposes of a divorce proceeding the wife may have a domicile separate from that of her husband. In consequence of this rule of American law it has frequently happened that actions for divorce have been initiated and carried to a conclusion without the respondent receiving any actual notice of the proceeding. This is made possible by provisions in the state statutes providing for service of notice by publication, where actual service cannot be had upon a respondent by reason of absence from the state. While decrees granted in accordance with the statutes of any particular state are valid in that state, there is no power to enforce a recognition of their validity in other states, and in consequence it frequently happens that a divorce may be valid in one state and invalid in another; the children of a second marriage legitimate in one state and illegitimate in another; the property rights of the former husband and wife terminated in one state and in full force in another. The Constitution of the United States (Art. IV, Sec. I) provides that "full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state, and the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof." This provision, however, does not require the recognition of a divorce where one of the parties is not a citizen of the state that has granted the decree. Thus in case where a husband abandoned his wife without justifiable cause, and removed to another state and acquired a domicile therein, and the wife remained in the matrimonial domicile, since her domicile did not follow that of her husband when he sued for a divorce in the state of his new domicile, and a decree was rendered upon a merely constructive service of process, it was held by the Supreme Court of the United States that the court of the husband's domicile did not acquire such jurisdiction over the wife as would entitle a decree to obligatory enforcement in the state of her domicile, though the state in which the decree was rendered had power to enforce it within its borders, and the state of the wife's domicile had the power to give the decree efficacy if it saw fit to do so. (Haddock vs Haddock, 201, U.S., 562.) While the courts of the states called upon to administer divorce statutes receive their jurisdiction by reason of the theory adopted by the legislatures representing the actually predominant sentiment of the various communities that marriage results from a civil contract, bringing about a civil status with certain rights and duties appertaining to husband and wife, they by no means accept the theory that it is such a relation or status that the parties by their own agreement can dissolve it. The difference between the marriage relation and that of a contract is set out by Bishop in the following language: — "Because the parties cannot mutually dissolve it; because an act of God incapacitating one to discharge its duties will not release it; because there is no accepted performance that will end it; because a minor of marriagable age can no more recede from it than an an adult; because it is not dissolved by failure of the original consideration; because no suit for damages will lie for the non-fulfillment of its duties; and because none of its other elements are those of contract but are all of status." (I, Marriage and Divorce, §46).

Keeping this distinction in mind, it will be perceived that a suit for divorce is not an action on a contract, but is a proceeding sui generis founded on the violation of duty enjoined by law and resembling more an action of tort than of contract. The law looks upon marriage as a permanent status, to be ended only by the death of one of the parties, a promise of competent persons to marry at their pleasure requiring a marriage licence merely to attest their competency. To change this status by divorce it is necessary to satisfy the court that the purpose of the marriage relation has been ended by the fault of the guilty party, and that greater evil will follow from maintaining the marriage status than from terminating it. Therefore, in theory, the divorce statutes embrace only such causes as are recognized as being of such a nature as to defeat the ends for which the marriage was entered into. In the great majority of the United States six causes as are included in this category: (1) adultery, (2) bigamy, (3) conviction of crime in certain classes of cases, (4) intolerable cruelty, (5) wilful desertion for two years, (6) habitual drunkenness. These are recognized as just causes, either for absolute divorce or for divorce a mensâ. The following causes are also considered such impediments to a lawful marriage that upon their being made to appear, the courts will decree such marriages null and void, in some jurisdictions under a separate proceeding of nullity, and in others under the form of a proceeding for divorce. These causes are (1) impotence, (2) consanguinity and affinity properly limited, (3) existing marriage, (4) fraud, force, or coercion, (5) insanity unknown to the other party.

The growth of divorce in the United States under the general divorce law has been unprecedented, and exceeds in number those of any other modern nation, excepting Japan. An analysis of the statistics prepared by Carrol D. Wright, Commissioner of Labor, in 1889, showed the total number of divorces for a period of twenty years, from 1867 to 1887, to be 328, 716, and increase of 157 per cent, while the increase in population for the same period was 60 per cent. The Census Bulletin, upon marriage and divorce in the United States issued by the Department of Labor and Commerce under authority of an Act of Congress, in 1908, shows that the total number of divorces for the entire country from 1887 to 1906 inclusive was 945, 625. For the earlier investigation covering the twenty years, from 1867 to 1886 inclusive, the number reported was 328, 716 or hardly more that one-third of the number reported in the second twenty years.

At the beginning of the forty-year period covered by the two investigations, divorces occurred at the rate of 10,000 a year. At the end of that period the annual number was about 66,000. This increase, however, must be considered in connection with the increase in population. An increase of 30 per cent in population between the years 1870 to 1880, was accompanied by an increase of 79 per cent in the number of divorces granted. In the next decade, 1880 to 1890, the population increased 25 per cent and divorces 70 per cent. In the following decade, 1890 to 1900, an increase of 21 per cent in population was accompanied by an increase of 66 per cent in the number of divorces. In the six years from 1900 to 1906, population, as estimated, increase 10. 5 per cent and divorces 29. 3 per cent. It thus appears at the end of the forty-year period that divorces were increasing about three times as fast as the population, while in the first decade, 1870 to 1880, they increased only about two and two-thirds as fast.

The divorce rate per 100,000 population increased from 29 in 1870 to 82 in 1905. In the former year there was one divorce for every 3441 persons and in the latter year one for every 1218. The rate per 100,000 married population was 81 in the year 1870 and 200 in the year 1900. This comparison indicates that divorce is at present two and one-half times as common, compared with married population, as it was forty years ago. Divorce rates appear to be much higher in the United States that in any of the foreign countries for which statistics relating to this subject have been obtained. Two-thirds of the total number of divorces granted in the twenty-year period covered by this investigation were granted to the wife. The most common single ground for divorce is desertion. This accounts for 38. 9 per cent of all divorces (period 1887 to 1906), 49. 4 per cent or almost one-half of those granted to the husband, and 33. 5 per cent or one-third of those granted to the wife. The next most important ground of divorce is, for husbands, adultery, and for wives, cruelty. Of the divorces granted to husbands (1887 to 1906), 28. 8 per cent were for adultery, and of those granted to wives 27. 5 per cent were cruelty. Only 10 per cent of the divorces granted to wives were for adultery of the husband, and 10. 5 per cent of divorces granted to husbands were for cruelty on the part of the wife. Drunkenness was the ground for divorce in 5. 3 per cent of the cases for which the wife brought suit, and in 1. 1 per cent of the cases in which the suit was brought by the husband. Intemperance was reported as an indirect or contributory cause for divorce in 5 per cent of the divorces granted to the husband, and in 18 per cent of the divorces granted to the wife, and appeared as a direct or indirect cause in 19. 5 per cent of all divorces, and 26. 3 per cent of those granted to wives, and 6. 1 per cent of those granted to husbands. Only 15 per cent of the divorces were returned as contested and probably in many of these cases the contesting was hardly more than a formality. Alimony was demanded in 18 per cent of the divorces granted to the wife and was granted in 12. 7 per cent. The proportion of husbands who asked for alimony was 2. 8 per cent and the proportion obtaining it was 2 per cent. The average duration of marriages terminated by divorce is about ten years. Sixty per cent or three-fifths last less than ten years and forty per cent last longer. Of the divorced couples known to have been married in the United States 88.5 percent were married in the same state in which they were divorced. Of the divorced couples known to have been married in foreign countries 36. 9 per cent were married in Canada, 12. 7 per cent in England, 16. 1 per cent in Germany and 1. 9 per cent in Ireland. Children were reported in 39. 8 per cent of the total number of divorced cases. The proportion is much larger for divorces granted to the wife than for divorces granted to the husband; children being present in 46. 8 per cent of the former class of divorces and 26 per cent of the latter. A reason suggested for this is that the children are assigned by the court to the mothers, and to her, therefore, divorce does not imply separation from her children, while to the husband it involves a severance of the parental as well as the marital relation. In Canada during 1900 there were eleven divorces; in 1901 nineteen. In England there were 284 in 1902, as compared with 177 in 1901. In Germany at the same time there were about 10,000 annually, and in France 21, 939 with a tendency towards a rapid increase. Among the Japanese there are about 100,000 divorces per annum. It is estimated that about fifty per cent of divorced couples have children, and it is urged "that consideration for the children of divorced people should be a first concern in stimulating restrictive legislation". It has been stated that three-quarters of boys in two reformatories, one in Ohio and one in Illinois, come from families broken up by death or divorce "mainly by divorce" (The Divorce Question in New Hampshire, Rev. W. Stanley Emery).

Divorce Congress of 1906

A well concerted effort was made in 1906, upon the initiative of the State of Pennsylvania, to secure uniform legislation by the various states and territories of the Union so as to eliminate as far as possible fraudulent proceedings for divorce. It resulted in the meeting of a Divorce Congress in the City of Washington, where all of the states, excepting Nevada, Mississipi, and South Carolina, were presented, in addition to the District of Columbia and the territory of New Mexico. The outcome of this congress was the adoption of a form of statute designed to overcome flagrant evils arisong from lack of uniformity, and also from inherent objections to various existing methods of precedure. A summary of these points will show how far the existing statutes were considered to need amendment.

Having in mind the evils that have arisen from migratory divorce (that is, where the plaintiff has left his or her own state to obtain a residence for the purpose of divorce in another) the congress recommended that all suits for divorce should be brought and prosecuted only in the state where one of the parties has a bona fide residence; that when the courts are given cognizance of suits where the plaintiff was domiciled in a foreign jurisdiction at the time the cause of complaint arose, relief should not be granted unless the cause be included among those recognized in the foreign domicile, and the same rule should apply in the case of the defendant. At least two years residence should be required of one of the parties before jurisdiction should be assumed. The defendant should be given every opportunity to appear and make defence, and one accused as co-respondent should be permitted to defend in the same suit. Hearings and trials should always be before the court and not before a delegated representative of it, and in all uncontested cases, and in any other case where in the judgment of the court it is wise, a disinterested attorney should be assigned to defend the cause. No decree should be granted on affirmative proof aside from the admission of the respondent. A decree dissolving marriage so as to permit remarriage of either party should not become operative until the lapse of a reasonable time after hearing or trial upon the merits of the case. In an inhabitant of one state should go into another state or territory to obtain a divorce for a cause which occurred in the matrimonial domicile, or for a cause which would not authorize a divorce by the laws of the domicile, such divorce should have no force or effect in the state of the domicile. Fraud or collusion in obtaining or attempting to obtain divorces should be made a statutory crime. The legitimacy of children born during overture, except in the case of bigamous marriages, should not be affected by divorce of the parents. On the subject of the causes each state should legislate for its own citizens and the common sentiment of that state should be properly expressed by the enumeration of causes in its own statute. Those heretofore given are recognized as representing the view of the great majority as covering offences against the marriage contract of so serious a character as to defeat the purpose of the marital relation. The congress expressed the hope that the number of causes for divorce would be reduced rather than increased and declared its opinion that in such jurisdictions as New York and the District of Columbia, where the only cause is adultery, no change is called for. It was recommended that where conviction of crime is made a cause, it must be followed by imprisonment for two years, but no absolute divorce should be granted for insanity, and that desertion should not be a cause unless persisted in for at least two years. Practically the same causes for divorce a mensâ et toro were enumerated. The provisions of this statute have already been adopted in Delaware and New Jersey and are under consideration (1908) in other states. While the reforms thus suggested will not put an end to what is known as the divorce evil, it is believed that they will have the effect of safeguarding trials and abating fraud upon the courts.

Philosophical thinkers recognize the fact that the prevalence of divorce in the United States arises from two causes.

The first of these causes is the gradual change in the attitude of society towards women in the recognition of their individual rights to their own property, and of their capacity to earn their own living in many vocations heretofore closed to them. The legal fiction that the identity of th woman was merged in that of her husband has given place to a growing recognition of her individuality in all relations of life. This has weakened the dependence of women upon their husbands for support and has affected the concept of the family relation. The theory of the Protestant leaders of the sixteenth century, that marriage is but a civil contract, devoid of sacramental character, has been strenghtened by the vicissitudes of modern life, while the facility with which divorces can be obtained has tended to a constant increase of their number. Marriage, not being accounted as sacrament by non-Catholic Christians, is entered into with greater ease than a contract of far less moment affecting property alone. The knowledge that in case of disagreement the parties may obtain a divorce no doubt has its effect.

The second cause is the gradual increase and development of irreligion and materialism among non-Catholic members of the community. Leaders of the Protestant Churches in the United States have become alarmed at the progress of divorce, and have been endeavouring in their various denominations to adopt such regulations as would restrict it to flagrant cases or abolish it entirely. It is evident that the prevalence of divorce is an indication of an unsound condition of society. Those who now endeavour to reform the civil statutes in the interest of honest trials, may suceed in abating some of the evils flowing from lax methods of administering the divorce statutes in some of the states, and in obtaining restrictive legislation in all of them, but it is not probable that the demoralization will be stopped until the majority of the people of the civilized nations return to the belief in the supernatural sanction of marriage and "that it is a sacramental union, productive of the graces necessary to bear with one another's shortcomings; and indissoluble union as that of soul and body, which can be dissolved only in death. This means a return to the Catholic view of marriage, and this return alone can remove the national evil of divorce". (See MARRIAGE; WOMAN; PARENTS; also the articles on the various states and countries for divorce legislation.)


TEBB, Essay on Adultery and Divorce; BECKER, Gallus and Charicles (for Roman and Greek customs and conditions); KENT, Commentaries on Am. Law; BISHOP, Marriage, Divorce and Separation; HOWARD, History of Matrimonial Institutions; WALTON, Scope and Interpretation of the Civil Code of Lower Canada; GEMMILL in Canadian Law Times (March, 1888); Report of the U. S Commissioner of Labor (Washington, 1889); Am. and English Encyl. of Law; Proceedings of the Nat. Divorce Congress (Washington, Philadelphia, 1906); OTTEN in The Messenger (April, 1904). For a full literature of the subject see Marriage and Divorce Bibliography of the World (Comparative Law Bureau of the American Bar Association, 1908).

About this page

APA citation. Smith, W.G. (1909). Divorce (in Civil Jurisprudence). In The Catholic Encyclopedia. New York: Robert Appleton Company.

MLA citation. Smith, Walter George. "Divorce (in Civil Jurisprudence)." The Catholic Encyclopedia. Vol. 5. New York: Robert Appleton Company, 1909. <>.

Transcription. This article was transcribed for New Advent by Listya Sari Diyah. Dedicated to the continuation of unconditional love, trust, and faith in God among all married couples in the world.

Ecclesiastical approbation. Nihil Obstat. May 1, 1909. Remy Lafort, Censor. Imprimatur. +John M. Farley, Archbishop of New York.

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