LECTURE XXVII.

OF THE LAW CONCERNING DIVORCE.

WHEN a marriage is duly made, it becomes of perpetual obligation, and cannot be renounced at the pleasure of either or both of the parties. It continues, until dissolved by the death of one of the parties, or by divorce.

(1.) Of Divorce a vinculo.

By the ecclesiastical law, a marriage may be dissolved and declared void ab initio, for canonical causes of impediment, existing previous to the marriage. Divorces a vinculo matrimonii, said Lord Coke, (a) are causa præcontractus, causa metus, causa impotentiæ seu frigiditatis, causa affinitatis, causa consanguinitatis. We have seen how far a marriage may be adjudged void, as being procured by fear or fraud, or contracted within the forbidden degrees. The courts in Massachusetts, Delaware, Ohio, North Carolina, Alabama, Illinois, and probably in other states, are authorized by statute to grant divorces causa impotentiæ; and in Connecticut, imbecility has been declared sufficient to dissolve a marriage on the ground of fraud. (b) The canonical disabilities, such as consanguinity, and affinity, and corporeal infirmity, existing prior to the marriage, render it voidable only, and such marriages are valid for all civil purposes, unless sentence of nullity be declared in the lifetime of the parties; and it cannot be declared void *96 for those causes after the death of either party. (c) * But the civil disabilities, such as a prior marriage, or idiocy, make the contract void, ab initio, and the union meretricious. (a) In

(a) Co. Litt. 235, a.

(b) Benton v. Benton, 1 Day, 111. Dane's Abr. of American Law, ch. 46, art. 9, sec. 14. Revised Laws of Illinois, 1833.

(c) 1 Blacks. Com. 434, 435. Bury's case, 5 Co. 98, b. 2 Phil. 19.

(a) Elliott v Gurr, 2 Phil.

16. Rex v. Inhabitants of Wroxton, 4 Barn. & Ad.

New York it was adjudged, in Burtis v. Burtis, (b) that corporeal impotence was not, under the existing laws, a cause of divorce, and that the English law of divorce on that point had never been adopted. The new French code will not allow such an allegation by the husband; (c) and Toullier (d) condemns a decree of divorce, causa impotentiæ, which was pronounced in France, in 1808, as contrary to the spirit of the code, and leading to scandalous inquiry.

Since the New York decision above mentioned, the jurisdiction of the Court of Chancery on this subject has been enlarged, and the New York Revised Statutes have authorized the chancellor, on a suit before him by bill, to declare void the marriage contract: 1. If either of the parties, at the time of the marriage, had not attained the age of legal consent. 2. If the former husband or wife of the party was living, and the marriage in force. 3. If one of the parties was an idiot or lunatic. 4. If the consent of one of the parties was obtained by force or fraud.1 5. If one of the par

640. By the Massachusetts Genl. Sts. ch. 107, all marriages prohibited by law on account of consanguinity or affinity, or when the former wife or husband is living, or when either party was at the time insane, or an idiot, are declared to be absolutely void, without a decree of divorce, or other legal process; though, if the case be doubtful in point of fact, a libel for divorce may be filed and prosecuted. So, if persons marry under the age of consent, and separate during such nonage, and do not cohabit afterwards, the marriage is void without any decree of divorce. Divorce a vinculo may be decreed for adultery or impotency in either party; or when either party has separated from the other without his or her consent, and united with a religious society that professes to believe the relation of husband and wife unlawful, and has so continued for three years, refusing during that time to cohabit with the party who has not united with such society; or when either is sentenced to confinement in the state prison. The issue of any marriage declared null by decree, on account of consanguinity or affinity, are to be deemed illegitimate. It is otherwise upon the dissolution of a marriage on account of nonage, insanity, or idiocy. So the issue is also legitimate if the marriage be dissolved for bigamy, provided the second marriage was contracted in good faith, and with the full belief that the former husband or wife was dead. So, in Vermont, marriages prohibited by law, on account of consanguinity or affinity, or on account of a former wife or husband living, are absolutely void, without legal process or decree. A libel for the purpose may be filed in doubtful cases. If the marriage be declared void, on account of consanguinity or affinity, the issue is to be deemed illegitimate. See Revised Statutes of Vermont, 1839, p. 322; and I take the occasion to observe, that this new revised code of Vermont does credit to the learning, judgment, and taste with which it was prepared, digested, and published. (b) 1 Hopk. 557.

(c) Code Civil, art. 313.

(d) Droit Civil Français, tom. i. No. 525.

1 Under Statutes similar in terms, it has been held in Massachusetts and in California that a marriage contracted by a woman pregnant from illicit intercourse, may be annulled at the suit of the husband, when at the time of the marriage he was ignorant of her preg

ties was physically incapable of entering into the marriage state. All issues upon the legality of a marriage, except where it is sought to be annulled on the ground of the physical incapacity of one of the parties, are to be tried by a jury upon the award of a feigned issue. (e) 2

It is further provided, that a marriage shall not be annulled for the first cause above mentioned, on the application of a party who was of legal age at the time of the marriage, or if the parties, after they had attained the age of consent, had for any time freely

cohabited as husband and wife. It may be annulled for the * 97 second cause on the application of either * party during the

life of the other; but if it was contracted in good faith, and with the full belief of the parties that the former husband or wife was dead, the issue thereof shall be entitled to succeed to the estate of the parent equally as legitimate children. It may be annulled for the third cause, on the application of any relative of the idiot or lunatic interested to avoid the marriage, or by his next friend. But any free cohabitation of husband and wife, after the lunacy has ceased, will be a bar to the divorce; and the children of a marriage annulled on the ground of lunacy or idiocy are entitled to succeed as legitimate children. A marriage may be annulled for the fourth cause above mentioned, during the life of the parties, on the application of the party whose consent was unduly obtained, provided there has been no subsequent voluntary cohabitation as husband and wife. The custody of the issue of such a marriage is to be given to the innocent parent, and a provision for their education and maintenance may be made out of the estate of the guilty party. A marriage is to be annulled for the fith and last cause above mentioned, only on the application of

(e) N. Y. Revised Statutes, vol. ii. 142, sec. 20. Ibid. 175, sec. 45.

nancy, and believed her to be chaste. Reynolds v. Reynolds, 3 Allen, 605. Baker v. Baker, 13 Cal. 87. The law of New York seems to be the same. Scott v. Shufeldt, 5 Paige, 43. By ch. 257 of the Laws of New York, 1841, nullity of marriage may be declared at the suit of the wife, if she was under the age of fourteen years, and the marriage took place without the consent of her father, or other person having the legal charge of her person, and was an offence on the part of the husband under the statute, and if the marriage was not followed by consummation or cohabitation, nor was ratified by mutual assent after the wife attained fourteen.

By ch. 246, p. 466, Laws of New York of 1862, a divorce on the ground of fraud may be had, if there has been no voluntary cohabitation, with full knowledge of the facts constituting the fraud.

the injured party, and the suit must be brought within two years from the solemnization of the marriage. (a)

*

These cases are all founded on the ground of the nullity of the marriage contract, for causes existing at the time it was formed; but there is one other case in which the marriage contract may be dissolved for a cause accruing subsequently. During the period of our colonial government, for more than one hundred years preceding the Revolution, no divorce took place in the colony of New York; and for many years after New York became an independent state, there was not any lawful mode of dissolving a marriage in the lifetime of the parties, but by a special Act of the legislature. This strictness was productive of public inconvenience, and often forced the parties, in cases which rendered a separation fit* and necessary, to some other state, to avail themselves 98 of a more easy and certain remedy. At last the legislature, in 1787, authorized the Court of Chancery to pronounce divorces a vinculo, in the single case of adultery, upon a bill filed by the party aggrieved. As the law in New York now stands, a bill for a divorce for adultery, committed by either husband or wife, can be sustained in three cases only: (1.) If the married parties are inhabitants of the state at the time of the commission of the adultery; (2.) If the marriage took place in the state, and the party injured be an actual resident at the time of the adultery committed, and at the time of filing the bill;1 (3.) If the adultery was committed in the state, and the injured party, at the time of filing the bill, be an actual inhabitant of the state. (a) If the defendant

(a) N. Y. R. S. vol. ii. 142, 143, sec. 21-33. The Revised Statutes of Vermont, 1839, pp. 322, 323, contain the same provisions as the New York statute relative to the above causes of divorce, and the jurisdiction is vested in the Supreme Court.

(a) New York Revised Statutes, vol. ii. p. 144, sec. 38, 39. It was adjudged, in New Jersey, in the case of The State v. Lash, 1 Harr. 380, that a married man is not guilty of adultery, in having carnal connection with an unmarried woman. In Vermont, an act of that kind, between such parties, is punished by fine and imprisonment, as in cases of adultery. Revised Statutes of Vermont, 1839, p. 443. So in Tennessee, and in some of the other states, the living together by unmarried persons, in illicit connection, is an indictable offence.

1 In New York, (Laws 1862, ch. 246, p. 466,) the jurisdiction has been enlarged by amending the second subdivision, so that if the marriage took place in the state, or if the injured party is an actual inhabitant of the state, at the time of the offence and of exhibiting the complaint, the action may be sustained.

answers the bill, and denies the charge, a feigned issue 2 is to be awarded, under the direction of the chancellor, to try the truth of the charge before a jury, in a court of law. Upon the trial of the issue, the fact must be sufficiently proved by testimony independent of the confession of the party; for, to guard against all kinds of improper influence, collusion, and fraud, it is the general policy of the law on this subject not to proceed solely upon the ground of the confession of the party to a dissolution of the marriage contract. The rule, that the confession of the party was not sufficient, unless supported by other proof, was derived from the canon law, and arose from the jealousy that the confession might be extorted, or made collusively, in order to furnish means to effect a divorce. (b)

If the defendant suffers the bill to be taken pro confesso, *99* or admits the charge, it would be equally dangerous to act upon that admission of the bill, and the statute therefore directs that the case be referred to a master in chancery, to take proof of the adultery, and to report the same with his opinion thereon.1 If the report of the master, or the verdict of the jury, as the case may be, shall satisfy the chancellor of the truth of the charge of adultery, he may then decree a dissolution of the marriage; but this dissolution is not, under certain circumstances, to affect the legitimacy of the children. If the wife be the complainant, the legitimacy of any children of the marriage, born or begotten of her before the filing of the bill, is not to be affected by the decree; and if the husband be the complainant, the legitimacy of children born or begotten before the commission of the offence

(b) Burn's Eccl. Law, tit. Marriage, sec. 11. Traité de l'Adultere, par Fournel, p. 160. Pothier, Contrat de Mariage, Nos. 517, 518. Baxter v. Baxter, 1 Mass. 346. Betts v. Betts, 1 Johns. Ch. 197. The New York Revised Statutes, vol. ii. p. 144, sec. 36, and the Vermont Revised Statutes of 1839, p. 323, sec. 15, provide that no sentence of nullity of marriage can be pronounced solely on the declarations or confessions of the parties; but other satisfactory evidence of the existence of the facts on which the decree is to be founded must be required.

Feigned issues are now abolished in New York. Code of Procedure, sec. 72. That is, the supposition of a wager, depending on the fact in dispute, is no longer to be resorted to; under the reformed practice, the disputed fact is ordered to be tried by a jury, and is often presented to them in the simple form of a question, to be answered "yes" or "no."

1 But no order of reference will be made, on default of the defendant to answer, unless the bill specify, with reasonable certainty, the incidents of the alleged offence. Heyde v. Heyde, 4 Sandf. 692.