Friday, November 28, 2014
The Law-dictionary: Explaining the Rise, Progress and Present State of the British Law:
DIVORCE, The separation of two, de facto married together, made by law: it is a judgment spiritual; and therefore, if there be occasion, it ought to be reversed in the spiritual court. Co. Lit. 385. And, besides sentence of divorce, in the old law, the woman divorced was to have of her husband a writing called a bill of divorce, which was to this effect; viz. I promise that hereafter I will lay no claim to thee, &c.—See title Baron and Feme, III. 2. VI. and particularly XI. See also title Marriage.
There are many divorces mentioned in our books; as causa prct contractus; causa frigiditatis; causd consanguinitatis; causa affinitatis; causa professions, &c. But the usual divorces are only of two kinds, i. e. a mensa Sf thoro, from bed and board; and a vinculo matrimonii, from the very bond of marriage.
A divorce a mensa thoro dissolveth not the marriage; for the cause of it is subsequent to the marriage, and supposes the marriage to be lawful: this divorce may be by reason of adultery in either of the parties, for cruelty of the husband, &c. And as it doth not dissolve the marriage, so it doth not debar the woman of her dower, or bastardize the issue, or make void any estate for the life of husband and wife, &c. Co. Lit. 235. 3 Inst. 89. 7 Rep. 43. The woman under separation by this divorce must sue by her next friend; and she may sue her husband in her own name for alimony. Wood's Inst.62.
A divorce a vinculo matrimonii, absolutely dissolves the marriage, and makes it void from the beginning, the causes of it being precedent to the marriage; as precontract with some other person, consanguinity or affinity, within the Levitical degrees, impotency, impuberty, &c. On this divorce dower is pone; and if, by reason of precontract, consanguinity, or affinity, the children begotten between them are bastards. Co. Rii. 335. 2 Inst. 93, 687.
But in these divorces, the wife, it is said, shall receive all again that she brought with her, because the nullity of the marriage arises through some impediment; and the goods of the wife were given for her advancement in marriage, which now ceaseth; but this is where the goods are not spent; and if the husband give them away during the coverture, without any collusion, it shall bind her: if she knows her goods unspent, she may bring action of detinue for them; and as for money, &c. which cannot be known, she must sue in the spiritual court. Dyer. 62. Nels. Abr. 675. This divorce enables the parties to marry again. But in the other cases, a power for so doing must be obtained by act of parliament.
Where lands were formerly given to husband and wife; and the heirs of their bodies in frank marriage; if they had been afterwards divorced, the wife was to have her whole lands; and by divorce an estate tail of baron and feme, it is said may be extinct. Godb. 18. After a sentence of divorce is given in the spiritual court causa precontracts, the issue of that marriage shall be bastards, so long as the sentence stands unrepealed: and no proof shall be admitted at Common-law to the contrary. Co. Lit. 235. 1 Nels. 674. In such case issue of a second marriage may inherit until the sentence is repealed. 2 Leon. 207.
If after a divorce a mensa et thoro, either of the parties marry again, the other being living, such marriage is a mere nullity; and by sentence to confirm the first contract, she and her first husband become husband and wife to all intents, without any formal divorce from the second. 1 Leon. 173. Also on this divorce,as the marriage continues, marrying again while either party is living, hath been held to be bigamy within the stat. Uac. c.ll.—Cro.Car.333. 1 Nels.67-t.
A divorce for adultery was anciently a vinculo matrimonii; and therefore in the beginning of the reign of Queen Elizabeth the opinion of the church 'of England was, that after a divorce for adultery, the parties might marry again; but in Foliambe's case H. 44 El.in the star-chamber, that opinion was changed; and archbishop Bancroft, by the advice of divines, held, that adultery was only a cause of divorce h mensa et thoro. 3 Salk. 138.
Sentence of divorce must be given in the life of the parties, and not afterwards: but it may be repealed in the spiritual court, after the death of the parties. Co. Lit. S3. 244. 7 Rep. 44. 5 Rep. 98. Upon the divorce of a man and his wife, equity will not assist the wife in recovering dower, at the husband's death, but shall leave her to the law; neither' ought the spiritual court to grant her administration, she not being such a wife as is entitled to it; nor will the Chancer decree her a distributive share. Preced, Cane. Ill, 115,
Divorces may be obtained by act of parliament: and for 1 this purpose it is necessary that on the petition for the bill to the House of Lords, (where such bill usually originates) that an official copy of the proceedings, and definitive sentence of divorce a mensa e thoro, in the Ecclesiastical Courts, at the suit of the petitioner, shall be delivered at the bar on oath.—
Upon the second reading of the bill, the petitioner must attend the house to be examined at the bar, if the house think fit, whether there is any collusion respecting the act of adultery, or the divorce, or any action for Crim. Con.; and whether the wife was living apart from her husband under articles of separation. In all divorce bills must be contained a clause prohibiting the offending parties from intermarrying with each other, and evidence must be given, in the committee of the House of Commons, on the bill, that an action for damages has been brought against the seducer, and judgment for the plaintiff had thereon; or a sufficient reason given why such action was not brought, or judgment obtained. See the Standing Orders of the Two Houses.