exclusive power, through its legislature, to fix the domestic policy of its people, including the subject of marriage. This results from the consideration that marriage is universally regarded, not as a mere personal relation or contract, although it comes into existence in pursuance of a contract, but as a status or legal condition established by law involving not merely the well-being of the parties, but also the highest interests of society and the state, and having more to do with the morals and the civilization of a people than any other institution." Being a public institution, involving the good conduct of society, it comes within the protection of the public policy which governs and regulates the laws of every state." A state, which has the power thus to create and regulate the relation and status of married persons, has the like power, in the absence of constitutional restrictions and with a due regard to property rights already vested, to alter or dissolve the relation. It follows, since marriage is not simply a personal contract nor a vested right, that a law which dissolves the marriage relation does not fall within the constitutional prohibition against the impairment of the obligation of contracts.1 The divorce jurisdiction of each state is wholly statutory," and the agencies for granting divorces are either the legislature or the courts of law. A legislative divorce is a special act of the legislature, but it has all the effects of a decree of divorce. Legislative divorces were formerly common in the United States, but are now of little interest, having been abolished in the states of Alabama, Arkansas, California, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Nebraska, New Hampshire, New Jersey, New York, Nevada, North Carolina, Ohio, Pennsylvania, Tennessee, Texas, Virginia, West Virginia, and Wisconsin. 5. Judicial divorces are now almost universal in the United States, the legislature of each state vesting in its 1663 N. W. Rep. 83 (1895); see The Law of Husband and Wife: The Marriage Relation. 179 Ind. 37 (1857). 1863 N. W. Rep. 85 (1895). courts of equity, or in courts having equitable powers, exclusive jurisdiction in all matters pertaining to divorce. The causes for divorce are usually enumerated by statute, and where this is done, all other causes, except perhaps such as render the marriage void from the beginning, are excluded." Where the legislature confers divorce jurisdiction, but no causes for divorce are named, the jurisdiction of the courts is limited to such causes as were grounds for divorce in the old English ecclesiastical courts." The time within which the petitioner must have resided in the state before commencing his action, as also the particular county in which suit must be brought, are usually specifically prescribed. Such statutes are generally framed upon the theory that jurisdiction of the action depends on the domicil of the parties, and, in particular, the domicil of the party applying; yet, in some states, the jurisdiction is made to depend upon such other facts as the place where the marriage was celebrated, the place where the offense was committed, the domicil at the time of the marriage, or the domicil when the offense was committed. Absolute divorces are granted in all the states except South Carolina, where no divorces of any kind are granted, being prohibited by the state constitution." Limited divorces are granted in many of the states, are abolished in others, and are generally considered to be of questionable wisdom and efficacy. They give some measure of protection to defenseless wives of drunkards and ruffians, but the parties, being still husband and wife, are exposed to great temptations to commit adultery. The parties themselves sometimes change their marital relations, for there is no law which prevents their giving up the right of cohabitation and living apart by mutual consent. Contracts are entered into stipulating conditions, property rights, and obligations, thus modifying the legal relation of husband and wife. These are called deeds of separation, and form no bar to a subsequent action of divorce, except where the cause alleged is desertion, in which case they affirmatively 201 Paige Ch. (N. Y.) 276 (1828). 21 15 Ill. 120 (1853). 22 12 S. C. 29 (1879). establish that the separation was by mutual consent; although the case is altered, and desertion is established, where one of . the parties expressly repudiates the deed of separation, and, in good faith, offers to return to cohabitation with the other." 6. In Canada, no mention of divorce occurs in the legislative annals until 1833," prior to which time there was no substantive divorce law in England. In 1833, a bill was introduced in the assembly of Upper Canada "to enable married people to obtain divorce in certain cases," but the measure was dropped before second reading. In 1839, a divorce was granted by the same legislature, but from 1845 to 1867 only three similar bills were passed, and these only by narrow majorities and with the hostile opposition of the Roman Catholic legislators. In 1867, by the British North America Act, which conferred a new constitution upon the Dominion of Canada, exclusive jurisdiction in divorce matters was given to the Canadian parliament, which has ever since exercised authority on the subject over the dominion. The parliament has not yet repealed statutes which were in force at the time of the entry into the federal union of the provinces of Nova Scotia, New Brunswick, Prince Edward Island, and British Columbia, and, in these provinces, certain judicial tribunals still continue to grant divorces." During the twenty years from 1868 to 1888, these provincial courts granted one hundred and nine divorces. In the same period, the Canadian parliament granted but twenty-five divorces." CAUSES FOR DIVORCE 7. Causes for divorce are everywhere recognized to be of two kinds: (1) Such as existed at the time of the marriage, and which render it void or voidable, called canonical causes, and (2) such as have arisen since the marriage, which may be said to be by far the most prolific grounds for divorce. 23 33 N. J. Eq. 661 (1880). 24 Gemm. Div. in Canada, p. 17. 25 Ibid., p. 33. 26 Ibid., p. 257. CANONICAL CAUSES 8. This class includes causes such as render the parties, or one of them, unfit or incompetent for the marriage relation, and are of canonical or ecclesiastical origin. Strictly and technically they are causes for nullity of the marriage, but in many of the United States are frequently included in the statutory causes for divorce. They are: Non-age, mental incapacity, physical incapacity, consanguinity and affinity within. prescribed degrees, prior existing marriage, and marriage by mistake or fraud. For these causes, it is believed, divorces may be had everywhere. The English Matrimonial Act of 1858 expressly authorizes the divorce court to grant relief on principles which shall conform as nearly as may be to the principles on which the ecclesiastical courts formerly acted; and the same is true of the British North America Act of 1867 regulating the subject of divorce in Canada. In the United States, as has been seen, these causes are frequently to be found among the statutory causes for divorce. These canonical causes are briefly considered. 9. Non-Age. - Non-age is want of age. A person under seven years of age is incapable of marriage, and at common law his marriage was absolutely void." The marriage of a male between seven and fourteen, or of a female between seven and twelve, is voidable." The age of puberty was by the common law fixed at twelve in females and at fourteen in males, and, therefore, the marriage of a male over fourteen or of a female over twelve, was held to be valid." In most of the United States, the statutes prescribed the age at which a party may marry, and the marriage of a party under the statutory age is generally held voidable." In some of the states, the common-law rule still exists," while in others, the ages of eighteen for males and fourteen for females," or sixteen for males and fourteen for females, are adopted. 10. Mental Incapacity. - The marriage of a person who is insane is void at common law. By statute, in many of the United States," insanity is made a cause for divorce. In general, to constitute a cause for divorce, the insanity must have existed at the time of the marriage. Insanity arising after marriage is rarely a cause for divorce," though it is expressly made so by statute in some of the United States." 11. Physical Incapacity. - The marriage of one who is sexually impotent is voidable at common law, but not void. Most of the states have, by statute, declared impotence a cause for divorce. To be a cause for divorce, the impotence must be incurable, and must amount to an inability to copulate, and not merely an inability to reproduce children," for mere barrenness or sterility is no ground for a divorce, unless expressly made so by statute. The inability to copulate need not in all cases consist of a structural malformation, but a physical defect will be sufficient, if the result be to render sexual intercourse impossible except in an incomplete or unnatural manner. A divorce was granted where the man was impotent as to his wife, though of full powers as to other women;" and a divorce was granted to a man where all attempts at intercourse caused hysteria in the woman." The defect must have existed at the time of the marriage; for, if it arise afterwards, though from causes existing at that time, it is no ground for divorce." It must have been unknown, at the time of the marriage, by the party complaining, and parties marrying late in life are presumed to know of defects peculiar to age, and cannot complain merely of such defects as are natural in persons of like age." Unreasonable and unexplained delay in making the complaint may prove a bar to the suit, and the validity of such a marriage can only be questioned in the lifetime of the parties, and by the party suffering an injury from it." 33 Stats. Fla., Ga., Miss. 34 66 Ill. 87 (1872); 43 Iowa 534 (1876). 35 Ark. Stat. (1874). 361 Rob Ecc. (Eng.) 279 (1845). 371 Spinks (Eng.) 389 (1854). 38 L. R. 3 P. & D. (Eng.) 126 (1873). 39 18 Kans. 371 (1877). 40 28 N. J. Eq. 34 (1877). 41 37 L. J. Mat. Cas. (Eng.) 80 (1868). |