DIVORCE (from the Latin word di vdrtium, a divertendo, from diverting or separating), the legal separation of hus band and wife. In England, divorce is of two kinds : i mensft et thoro, from bed and board ; and is vinculo matrimouii, from the bond of the marriage. The di vorce is menial et thoro is pronounced by the spiritual court for causes arising sub sequent to the marriage, as for adultery, cruelty, &e. : it does not dissolve the marriage, and the parties cannot contract another marriage. [Biamay.] In fact it is equivalent only to a separation.
The divorce is vinculo matrimonii can be obtained in the spiritual courts for causes only existing before the marriage, as precontract, consanguinity, impotency, &c. This divorce declares the marriage to have been null and void, the issue be gotten between the parties are bastardized, and the parties themselves are at liberty to contract marriage with others.
From the curious document preserved by Selden Uxor Ebraica,' c. xxx., vol. iii. 845, folio ed. of his Works), whereby John de Cameys, in the reign of Edward I., transferred his wife and her property to William Paynel ; and also, from the reference to the laws of Howel the Good, at the end of this article, it would seem that in the early periods of English law a divorce might be had by mutual con sent ; but all trace of such a custom is lost. We know however (3 Salk. Rep. 138) that, until the 44 Ells., a divorce is vinculo matrimonii might be had in the ecclesiastical courts for ; but in Foljambe's case, which occurred in that year in the Star Chamber, Archbishop Bancroft, upon the advice of divines, held that adultery was only a cause of divorce k mensft et thoro.
The history of the law of divorce in England may perhaps be thus satisfacto rily explained. Marriage, being a con tract of a civil nature, might originally be dissolved by consent ; and probably the ordinary courts of justice asserted their jurisdiction over this as well as every other description of contract. At length, the rite of marriage having been elevated to the dignity of a sacrament by Pope Innocent III., A.D. 1215, the eccle siastical courts asserted the sole jurisdic tion over it. In the course of time the power of these courts was again con trolled, and the sole jurisdiction for granting divorces for matter arising sub sequently to the marriage was vested in the superior court of the kingdom, the House of Lords, where it was less likely to be abused than by the ecclesiastical authorities, who used to grant these and other dispensations for money.
Marriage is now, by the law of Eng land, indissoluble by the decree of any of the ordinary courts, on account of any cause that arises subsequently to the mar riage; but divorce k vinculo matrimonii may still for adultery, &c. be obtained by
act of parliament. For this purpose it is necessary that a civil action should have been brought by the husband in one of the courts of law against the adulterer [ADULTERY], and damages obtained therein, or some sufficient reason adduced why such action was not brought, or da mages obtained, and that a definitive sea 1 tence of divorce is mend et thoro should have been pronounced between the parties in the ecclesiastical court. But this sen tence cannot be obtained for the adultery of the wife, if she recriminates, and cau prove that the husband has been unfaith ful to the marriage vow ; and farther, to prevent any collusion between the parties, both houses of parliament may, if neces sary, and generally do, require satisfac tory evidence that it is proper to allow the bill of divorce to pass.
The first proceeding of this nature was in the reign of Edward VI. and bills of divorce have since greatl:( increased. Where the injured husband can satisfy both houses of parliament, which are not bound in granting or withholding the in dulgence by any of those fixed rules which control the proceedings of ordinary courts, a divorce is granted. The ex penses of the proceeding are so consider able as to amount to an absolute denial of the relief to the mass of society ; indeed from this circumstance divorce bills have not improperly been called the privilege of the rich. There is an order of the House of Lords that, in every divorce bill on account of adultery, a clause shall be inserted to prohibit the marriage of the offending parties with each other ; but this clause is generally omitted ; indeed it has been inserted only once, and that in a very flagrant case. But it is not un usual for parliament to provide that the wife shall not be left entirely destitute, by directing a payment of a sum of mo ney, in the nature of alimony, by the hus band, out of the fortune which he had with the wife. By the divorce h vinculo matrimonii the wife forfeits her dower. [Dowxa.] A Parliamentary return (354, Sess. 1844) gives the number of matrimonial suits instituted in each metropolitan and diocesan court in England, Wales, and Ireland, for the four years the number in the Court of Session, Scot land ; the number of appeals before the Judicial Committee of Privy Council, or the House of Lords; and the number of divorce acts passed in the same four years. The following is an abstract of this re turn :— Suits.