Divorce
existed in antiquity, dating at least back to ancient Mesopotamia.
The ancient Athenians liberally allowed divorce, but the person
requesting divorce had to submit the request to a magistrate,
and the magistrate could determine that the reasons given were
insufficient. Although liberally granted in ancient Athens, divorce
was rare in early Roman culture. As the Roman Empire grew in power
and authority, however, Roman civil law embraced the maxim, “matrimonia
debent esse libera” ("marriages ought to be free"),
and either husband or wife could renounce the marriage at will.
Though civil authority rarely intervened in divorces, social and
familial taboos guaranteed that divorce occurred only after serious
circumspection. The Christian emperors Constantine and Theodosius
restricted the grounds for divorce to grave cause, but this was
relaxed by Justinian in the 6th century. After the fall of the
empire, familial life was regulated more by ecclesiastical authority
than civil authority. By the 9th or 10th century of the Christian
era, the frequency of divorce had been greatly curtailed by the
influence of the Christian church. ( 2 Kent's Commentaries on
American Law, (14th ed. 1896)). The Christian church considered
marriage a sacrament instituted by God and Christ indissoluble
by mere human action. Canons of the Council of Trent, Twenty-fourth
Session.
Although divorce, as known today, was generally
prohibited after the 10th century, actions allowing the separation
of husband and wife and annulment of the marriage were well-known.
What is today referred to as “separate maintenance”
(or "legal separation") was termed “divorce a
mensa et thoro” (“divorce from bed-and-board”).
The husband and wife physically separated and were forbidden to
live or cohabit together; but their marital relationship did not
fully terminate. 2 Kent's Commentaries on American Law, , n. 1
(14th ed. 1896). Because the marriage did not end, the husband
had a continuing duty to support his wife (alimony). From the
earliest years of the Christian age until the 18th century, annulment
was the only means by which a marriage could be dissolved, and
the circumstances under which annulment was proper was solely
within the province of ecclesiastical courts. The common-law courts
had no power over marriage since it was a status granted by the
Church. The grounds for annulment were determined only by Church
authority. Annulment was known as “divorce a vinculo matrimonii,”
or “divorce from all the bonds of marriage,” for canonical
causes of impediment existing at the time of the marriage. “For
in cases of total divorce, the marriage is declared null, as having
been absolutely unlawful ab initio.” 1 W. Blackstone, Commentaries
on the Laws of England, 428 (Legal Classics Library spec. ed.
1984); 2 Kent's Commentaries on American Law, p. 1225, n. 1; 1
E.Coke, Institutes of the Laws of England, 235 (Legal Classics
Library spec. ed. 1985). The Sacrament of Marriage produced one
person from two, inseparable from each other: “By marriage
the husband and wife are one person in law: that is, the very
being of legal existence of the woman is suspended during the
marriage or at least incorporated and consolidated into that of
the husband: under whose wing, protection and cover, she performs
everything.” (Blackstone, Commentaries on the Laws of England,
(Legal Classics Library spec. ed. 1984). Since husband and wife
became one person upon marriage, that oneness could only be dissolved
if the parties improperly entered into the marriage initially.
Marriage later came to be considered a civil contract,
and civil authorities gradually asserted their power to decree
divorce. Since no precedents existed defining the circumstances
under which marriage could be dissolved, civil authorities heavily
relied on the previous determinations of the ecclesiastic courts
and freely adopted the requirements set down by those courts.
Although the common-law courts gradually assumed the power to
dissolve marriages, divorce was considered contrary to public
policy, and the courts strictly construed those circumstances
under which they would grant a divorce. Blackstone, Commentaries
on the Laws of England.
Because marriage could not be terminated except
in the most extreme circumstances, common-law courts refused the
grant of a divorce if evidence revealed any hint of complicity
between the husband and wife to divorce, or if they attempted
to manufacture grounds for a divorce. Divorce was granted only
because one party to the marriage had violated a sacred vow to
the "innocent spouse." If both husband and wife were
guilty, "neither would be allowed to escape the bonds of
marriage." Kent's Commentaries on American Law. Eventually,
the idea that a marriage could be dissolved in cases in which
one of the parties violated the sacred vow gradually allowed expansion
of the grounds upon which divorce could be granted from those
grounds which existed at the time of the marriage to grounds which
occurred after the marriage, but which exemplified violation of
that vow, such as abandonment, adultery, or “extreme cruelty.”
Kent's Commentaries on American Law.
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