184 Under the married women's enabling statutes, the wife may act not only for herself by herself, but also by an agent, and may appoint her husband or other person to act as her agent. So far as she is able to contract, a married woman may contract in person or by an agent.' The general rule is that where the wife is capable of acting for herself, and is sui juris, she may appoint her husband her agent to act for her and she is not prohibited from so doing by the marriage relation. If she be possessed of a separate estate and engaged in a separate business, the wife may employ her husband as agent to carry on the business, and may agree to compensate him for his services. 185 186 The wife may act as agent for the husband, there being nothing in the marriage relation to prevent her from so acting. She derives no authority to act as the husband's agent from the marriage relation; she must be in fact the agent of the husband in order to bind him by her acts." This agency is of two kinds: (1) That which the law creates as the result of the marriage relation, called "agency of necessity," by virtue of which the wife is authorized to pledge the husband's credit for the purpose of obtaining those necessaries which the husband himself has neglected or refused to furnish, and (2) that which arises from the authority of the husband, expressly or impliedly conferred, as in other cases. She acts as agent by implication, where her husband has assented to similar dealings of the wife, had on previous occasions; or her agency may arise by general consent of the husband, or by subsequent ratification, as where she has done an act during his absence which he did not disavow on his return.18 18471 Ind. 159 (1880). 187 1856 Neb. 377 (1877); 99 Ind. 469 (1884); 123 N. Y. 568 (1890); 113 Pa. 209 (1886); 117 Mich. 433 (1898). 186 11 Vt. 628 (1839). 188 28 Vt. 241 (1856); 43 Vt. 314 (1871); 53 THE LAW OF DIVORCE INTRODUCTION DEFINITION AND NATURE 1. Divorce is the dissolution or partial suspension by law of the marriage relation.' It is the act by which the state, acting through its legislative or its judicial department, either dissolves or merely suspends a marriage. Divorces, therefore, with reference to their source are (1) legislative, or such as are granted by a special act of the legislature, and (2) judicial, or such as are decreed by a court acting. under general laws. With reference to their operation and effect upon the marriage relation, divorces are (1) absolute, or such as altogether dissolve and put an end to the marriage, being termed also divorces a vinculo matrimonii — from the bond of matrimony-and (2) limited, or such as leave the marriage itself in full force, but decree that the parties shall live apart, being also termed divorces a mensa et thoro, or divorces from bed and board. In Canada, limited divorces are known as separations de corps. In the popular mind, the term divorce includes all the methods of judicial disunion of a husband and wife, being frequently applied to a sentence of nullity of marriage. A sentence of nullity, however, is a different thing from a decree of divorce; for, while the latter is a dissolution of the bands which once united the parties in a lawful marriage, the former is a declaration that a marriage pretended or supposed to be valid was in fact an invalid or unlawful marriage from the beginning. A decree of divorce operates 1 Bouv. Law Dict. 255 Me. 21 (1867). For notice of copyright, see page immediately following the title page from the time it is rendered, but a sentence of nullity relates back to the time when the marriage relation was assumed. A decree of absolute divorce destroys all inchoate property rights, such as dower, and all other rights depending upon the continuance of the relation, but preserves vested rights, such as were provided by an antenuptial settlement.' the other hand, a sentence of nullity, as it pronounces the marriage inherently invalid from its commencement, so it ignores all rights and interests alleged to have sprung from a relation spurious in its origin. Modern legal usage now confines the significance of the term divorce to a total dissolution of the bond of matrimony. A divorce a mensa et thoro is commonly called a legal separation, wherein provision is usually made for the support of the wife and for the custody of the children." HISTORY OF DIVORCE 2. Jurisdiction of all matrimonial causes belonged originally to the temporal courts. In Roman jurisprudence, divorce causes were heard and determined by the civil magistrates. In English history from a remote period, probably before the reign of Edward the Confessor, the ecclesiastical courts have assumed exclusive jurisdiction over all matters pertaining to marriage, on the ground that marriage was a sacrament and not within the control of the civil authorities. These ecclesiastical courts were church courts, the judges being church officials who received their commissions directly from the church, and indirectly from the king as the head of the church. It was a dogma of the church that marriage was a divine institution, not to be dissolved by divorce except by decree of the pope. Accordingly, for a long period, the ecclesiastical courts would grant no divorces a vinculo matrimonii, but only divorces a mensa et thoro, which, proving insufficient restraints upon the 381 Ill. 465 (1876). 44 Barb. (N. Y.) 303 (1848). 5 Bouv. Law Dict. 74 Johns. Ch. (N. Y.) 343 (1820), quoting Chancellor Kent. 8 67 Cal. 191 (1885). 6 Ibid. commission of grave offenses against the marriage relation, caused the greatest pressure to bear on the church to grant absolute divorces. This was finally accomplished, but with certain restrictions or limitations. The church only consented to grant absolute divorces for canonical causes, such as consanguinity, affinity, and impotence, and for such other causes, such as prior existing marriage, mental incapacity, want of age, and the like, as rendered the marriage invalid from the beginning." These divorces were in fact not the dissolution of lawful bonds of matrimony, but sentences of nullity of invalid marriages which were supposed or pretended to be valid. At a later date, parliament, upon exceptional occasions, granted absolute divorces for adultery committed after the marriage. Such was the condition of divorce jurisdiction in England down to the time of the American revolution, when the colonists forsook the mother country, taking with them so much of the English common law, of which the ecclesiastical law was part, as was applicable to their new situation. Whether the colonists, in taking with them the common law of England, did not also import into the colonies (even though they did not actually erect into institutions) the ecclesiastical courts which alone in England could grant divorces, is questioned. The affirmative of this view has been taken by some authorities," but the better opinion is that the divorce laws in the United States have always been, in their origin, purely statutory." 3. In England, for a long time previous to the year 1858, a divorce a vinculo matrimonii could not be obtained in a court of law, but only by act of parliament. In that year there was constituted the court for divorce and matrimonial causes, to which was transferred all the jurisdiction formerly exercised by parliament in the granting of divorces, as well as all jurisdiction theretofore vested in the ecclesiastical courts. By the Judicature Act of 1873, jurisdiction 91 Nels. Div., p. 21. 101 Johns. Ch. (N. Y.) 488 (1815), quoting Chancellor Kent. 11 39 Wis. 167 (1875), in divorce matters was exclusively vested in the probate and divorce division of the high court of justice, whence an appeal now lies to the court of appeal." Since 1858, divorces a mensa et thoro have not been granted in England under that name. There was substituted in their stead, by statute," judicial separations, which have the same force and the same consequences as a divorce a mensa et thoro. By a statute passed in 1878, if any husband be convicted of an aggravated assault upon his wife, the court or magistrate before whom the conviction is had may make an order that the wife shall no longer be bound to cohabit with her husband, and such order has all the force and effect of a decree of judicial separation. Since 1858, there have been no applications for private parliamentary divorces by married persons domiciled in England, but in 1886 a private enactment was obtained by an Irish lady, and there is still provided a procedure for bills of this nature in Irish and other cases." 4. In the United States, as has been seen, the better opinion is that the divorce jurisdiction is, in its origin, purely statutory. The federal courts have never been invested by statute with jurisdiction, and, therefore, take no cognizance of divorce cases. Marriage is not regarded as a national concern, but a domestic relation within the control of the several states. It has even been questioned whether congress could constitutionally vest divorce jurisdiction in the federal courts to the exclusion of the jurisdiction of the courts of the several states." There is, nevertheless, a widespread and increasing public sentiment in favor of the passage of a uniform divorce law in the United States. There are at the present time about forty-six different codes and thirty distinct causes for divorce. The state courts have supreme and absolute power, within their own territorial limits, in all matters affecting divorce. Each state is sovereign over its own inhabitants, and has 12 Bouv. Law Dict. 13 20 & 21 Vict. (1857), c. 85. 14 Gemm. Div. in Canada, p. 15. 15 10 How. (U. S.) 82 (1850). |