RELIGIOUS ENCYCLOPEDIA
Divorce
discretion to the court than does the fourth of these grounds. The law, however, appears to be conservatively administered; for the number of divorces is rapidly decreasing. In 1899 9,563 decrees were granted; while in 1901, under the new code, the number had sunk to 8,037.
By the present law of England three forms of separation are recognized; and jurisdiction is vested wholly in the civil courts. Full divorce may be granted for the adultery of either spouse; but the woman is treated with grave injustice. For while the husband may secure an absolute divorce on account of the simple adultery of the wife, the wife is unable to free herself from an unfaithful husband unless his infidelity has been coupled with such cruelty as " would have entitled her to a divorce a mensa et thoro " ; or " with desertion, without reasonable cause, for two years and upward " ; or with certain other aggravating offenses. Since 1860 the decree nisi has been in force, with the right of the king's proctor to intervene. Secondly, the law allows a decree for " judicial separation " with the .same force and the same consequences as the former ecclesiastical sentence a mensa et thoro, which was abolished in 1857. In the third place, the existing law provides for what is commonly called " magisterial separation," through which, by the issue of " protection," " maintenance," and " separation " orders, the court is able to secure to a deserted wife the enjoyment of her own property, with a just share in the delinquent partner's goods; and to protect the woman against a brutal husband's violence. In England, as in European countries generally, few divorces are granted as compared with the United States; but the divorce rate is rising. The number mounted from 127 in 1860 to 390 in 1887. In France, for each 1,000 marriages celebrated, fourteen divorces were decreed in 1885 and twenty-four in 1891, the population showing a very small increase. A similar movement is shown by the statistics for Holland and Sweden, and even for Roman Catholic states like Belgium and Bavaria.
III. Divorce Legislation in the United States:
Under the Federal Constitution the States within their respective borders have exclusive control of matrimonial and divorce legislation. Congress has conferred the same power upon the organized Territories; but it legislates directly for the District of Columbia and Alaska. Therefore at present (1907), including Porto Rico and Hawaii, there are in force fifty-two distinct divorce codes whose provisions are often conflicting, although in many of their vital features they are slowly approaching a common type. Jurisdiction belongs to the civil courts. Formerly the granting of divorces by the legislatures was a wide-spread evil. In nearly all the States, directly or indirectly, it is now prohibited by constitutional enactment; and since 1886 Congress has put a stop to it in the Territories.
Except between 1872 and 1878, divorce has never been provided for by statute in South Carolina. In the other fifty-one States— using " States " to include the districts. Territories, and insular possessions— full divorce is permitted, while in twenty-
three States separation from bed and board is likewise aUowed. Moreover, in seven jurisdictions the courts are authorized to
1. Stat- decree separate maintenance, which is utory virtually the same as separation from
Grounds bed and board. The number of legal of Divorce, causes of divorce a vinculo varies from one (adultery) in New York, District of Columbia, and (practically) in North Carolina (1905), to fourteen in New Hampshire. Several of these grounds reveal the tendency to abandon authority and to treat divorce purely as a social problem. Thus forty-two States have admitted drunkenness (intoxication, intemperance) as a proper cause for dissolving the marriage tie. Failure to provide for wife or family is recognized by twenty-one codes. Vagrancy of the husband is a cause in Missouri and Wyoming. By the statute of Rhode Island a marriage may be dissolved when either spouse is guilty of " habitual, excessive, and intemperate use of opium, morphine, or chloral " ; and a similar law exists in Maine, Massachusetts, Mississippi, and Porto Rico.
In eighteen States no restraint is placed on the immediate remarriage of either party with another.
Elsewhere restrictions are put upon
2. Re- one or both of the persons either as a marriage penalty or to allow time for proceed- After ings in error or on appeal. Thus, in
Divorce, case of adultery, marriage with the accomplice during the life of the former spouse is forbidden in Louisiana, Pennsylvania, and Tennessee; while such a union is absolutely prohibited in Delaware. In South Dakota and New York the defendant guilty of adultery may not marry any person during the life of the aggrieved; although in New York, on certain conditions, the court may remove the restraint. By the criminal code of Florida, the guilty defendant may not rewed. Under the act of 1901, in the District of Columbia the defendant is absolutely prohibited from remarriage, unless with the former spouse. In several States the placing of a temporary or perpetual restriction on further wedlock is left to the court's discretion. Such is the case in Michigan, Mississippi, Virginia, and Alabama; while in Georgia the question is left to the jury, subject to the court's revision. Three of the New England States discriminate against the defendant. Since 1878, in Vermont, the libelee may not marry any person other than the libelant for three years, unless the latter dies. Since 1883 the statute of Maine forbids the party obtaining the decree to rewed in two years without the court's permission; while during that period the adverse party is absolutely restrained; nor at any later time may he remarry without the court's consent. In Massachusetts since 1881 the offending person, without petition to the court, may remarry only after two yea,rs. Moreover, Massachusetts, following the English precedent, has adopted the decree nisi ; and in principle her example has already been followed by Maine (1883), Oklahoma (1893), Rhode Island (1902), New York (1902), and California (1903). Nine commonwealths of the West, foregoing any attempt to impose a penalty, are content to fix a
Divorce