The dissolution of a marriage contracted between a man and a woman, by the judgment of a court of competent jurisdiction, or (Obs.) by an act of the legislature. It is so called from the diversity of the minds of those who are married; because such as are divorced go each a different way from the other. Until a decree of divorce be actually made, neither party can treat the other as sole, even in cases where the marriage is utterly null and void for some preexisting cause. A decree of divorce must also be made during the lifetime of both the parties. After the decease of either the marriage will be deemed as legal in all respects.
Divorces are of two kinds: 1. a vinculo matrimonii, which dissolves and totally severs the marriage tie; and, 2. a mensa et thoro, which merely separates the parties.
The divorce a vinculo was never granted by the ecclesiastical law except for the most grave reasons. In England such a divorce bastardizes the issue, and generally speaking, is allowed only on the ground of some preexisting cause, but sometimes by act of parliament for a supervenient cause. When the marriage was dissolved for canonical causes of impediment existing previous to its taking place, it was declared void ab initio.
In the United States, divorces a vinculo are granted by the courts to which such jurisdiction is given, for certain causes particularly provided for by law.
The courts in nearly all the states have power to decree divorces a vinculo, for causes which existed and which were a bar to a lawful marriage, as, precontract, or the existence of a marriage between one of the contracting parties and another person, at the time the marriage sought to be dissolved took place; consanguinity, or that degree of relationship forbidden by law; affinity in some states; impotence, idiocy, lunacy, or other mental imbecility, which renders the party subject to it incapable of making a contract; when the contract was entered into in consequence of fraud.
Secondly, the marriage may be dissolved by divorce for causes which have arisen since the formation of the contract, the principal of which are adultery, cruelty, wilful and malicious desertion for a period of time specified in the acts of the several states; to these are added in some states, conviction of felony or other infamous crime, being a fugitive from justice when charged with an infamous crime. In Tennessee the husband may obtain a divorce when the wife was pregnant at the time of marriage with a child of color; and also when the wife refuses for two years to follow her husband, who has gone to Tennessee to reside. In Kentucky and Maine, where one of the parties has formed a connexion with certain religionists, whose opinions and practices are inconsistent with the marriage duties. And in some states, as Rhode Island and Vermont, for neglect and refusal on the part of the husband (he being of sufficient ability) to provide necessaries for the subsistence of his wife. In others, habitual drunkenness is a sufficient cause.
In some of the states divorces a mensa et thoro are granted for cruelty, desertion, and such like causes, while in others the divorce is a vinculo.
When the divorce is prayed for on the ground of adultery, in some and perhaps in most of the states, it is a good defence, 1st. That the other party has been guilty of the same offence. 2. That the hushand has prostituted his wife, or connived at her amours. 3. That the offended party has been reconciled to the other by either express or implied condonation. 4. That there was no intention to commit adultery, as when the party, supposing his or her first husband or wife dead, married again. 5. That the wife was forced or ravished.
The effects of a divorce a vinculo on the property of the wife, are various in the several states. When the divorce is for the adultery or other criminal acts of the husband, in general the wife's lands are restored to her; when it is caused by the adultery or other criminal act of the wife, the husband has in general some qualified right of curtesy to her lands; when the divorce is caused by some preexisting cause, as consanguinity, affinity or impotence, in some states, the lands of the wife are restored to her. At common law, a divorce a vinculo matrimonii bars the wife of dower; but not a divorce ti mensa et, thoro, though for the crime of adultery. If land be given to a man and his wife, and the heirs of their two bodies begotten, and they are divorced a vinculo, etc., they shall neither of them have this estate, but be barely tenants for life, notwithstanding the inheritance once vested in them. If a lease be made to husband and wife during coverture, and the husband sows the land, and afterwards they are divorced a vinculo, etc., the husband shall have the emblements in that case, for the divorce is the act of law. As to personalty, the rule of the common law is, if one marry a woman who has goods, he may give them or sell them at his pleasure. If they are divorced, the woman shall have the goods back again, unless the husband has given them away or sold them; for in such case she is without remedy. If the husband aliened them by collusion, she may aver and prove the collusion, and thereupon recover the goods from the alience. If one be bound in an obligation to a feme sole, marry her, and afterwards they are divorced, she may sue her former husband on the obligation, notwithstanding her action was in suspense during the marriage. And for such things as belonged to the wife before marriage, if they cannot be known, she could sue for after divorce, only in the court Christian, for the action of account did not lie, because he was not her receiver to account. But for such things as remain in specie and may be known, the common law gives her an action of detinue.
Divorces a mensa et thoro, are a mere separation of the parties for a time for causes arising since the marriage; they are pronounced by tribunals of competent jurisdiction. The effects of the sentence continue for the time it was pronounced, or until the parties are reconciled. A divorce a mensa et thoro deprives the husband of no marital right in respect to the property of the wife. Children born after a divorce a mensa et thoro are not presumed to be the husband's, unless he afterwards cohabited with his wife.
By the civil law, the child of parents divorced, is to be brought up by the innocent party at the expence of the guilty party.