Among the antient Britons, it may be collected from the laws of Howel the Good that the husband and wife might agree to dissolve the marriage st sus time ; in which case, if the separation took place during the first seven years of the marriage, a certain specified distri bution of the property was made, but after that period the division was equal. No limit was set to the husband's discre tion in divorcing his wife, but the wife could only divorce her husband in case he should be leprous, have bad breath, or be impotent, in which cases she might leave him and obtain all her property. The parties were at liberty to contract a fresh marriage ; but if a man repented of having divorced his wife, although she had married another man, yet if he could overtake her before the consumma tion of the marriage, or, as the law ex presses it, "with one foot in the bed of her second husband, and the other out side," he might have his wife again.
The law of Scotland relating to divorce differs widely from that in England : there, a divorce a vinculo matrimonii is a civil remedy, and may be obtained for adultery, or for wilful desertion by either party, persisted in for four years, though to this a good ground of separation is a defence. But recrimination is no bar to a divorce, as it is in England.
In the Dutch law there are only two causes of divorce a vinculo matrimonii, adultery and desertion.
In Spain the same causes affect the validity of a marriage as in England, and the contract is indissoluble by the civil courts, matrimonial causes being exclu sively of ecclesiastical cognizance. (A git. Laws of Spain.) The law of France, before the Revo lution, following the judgment of the Catholic Church, held marriage to be in dissoluble ; but the legislators of the early Revolutionary period permitted divorce at the pleasure of the parties. where incom patibility of temper was alleged. In the first three months of the year 1793, the number of divorces in the city of Paris alone amounted to 562, and the marriages to 1785, a proportion not much less than one to three ; while the divorces in Eng land for the previous century did not amount to much more than one-fifth of the number. (Burke's Letters on a Regi cide Peace.) Burke further states that lie followed up the inquiry through several subsequent months till he was tired, and found the results still the same. It must be remembered however that Burke wrote in the spirit of an advocate ; that the period he chose was that imme diately following the promulgation of the law, when all couples previously discon tented with each other obtained divorces ; and that if his calculations had fully borne out his statement, he would have given them in his pamphlet, which was written for a political purpose, and he would not have rested satisfied with inde finite allegations. It was generally ad mitted however that the licence was too great. The Code Napoleon accordingly restricted the liberty, but still allowed either party to demand a divorce on the ground of adultery committed by the other ; for outrageous conduct, or ill usage ; on account of condemnation to an infamous punishment ; or to effect it by mutual consent, expressed under cer tain conditions. By the same code a
woman could not contract a new mar riage until the expiration of ten months from the dissolution of the preceding.
On the restoration of the Bourbons a law was promulgated (8th May, 1816), declaring divorce to be abolished; that all suits then pending for divorce, for definite cause, should be for separation only, and that all steps then taken for divorce by mutual consent should be void ; and such is now the law of France.
In the United States, marriage, though it may be celebrated before clergymen as well as civil magistrates, is considered as a civil contract. The causes of divorce, and the facility or difficulty of obtaining it, are by no means the same in the seve ral States. The more general causes of a divorce a vinculo matrimonii are, former marriage, physical incapacity, or consan guinity; by the Connecticut law, fraudu lent contract; and by the New York code, idiotcy and insanity, and either party being under the age of consent. Adultery is also a cause of divorce it vin culo ; and the laws of some of the States prohibit the guilty party from marrying again. If the or wife is absent seven years, or by the laws of some States, three years, and not beard from, the other is at liberty to marry again ; and in some States, if the husband desert the wife, and make no provision for her support during three years, being able to make such provision, the wife can obtain a divorce. Extreme cruelty in either party is also generally a cause of divorce a vinculo matrimonii. In many of the States applications to the legislature for divorce, in cases not provided for by the statutes, are very frequent. In New York and New Jersey divorce is a sub ject of Chancery jurisdiction, from which, as in other cases, questions of law may be referred to a jury for trial. In New Hampshire, joining the religious society of Shakers, who hold cohabitation un lawful, and continuing in that society for three years, is sufficient ground for a divorce. But in most of the States the courts of law have cognizance of divorce. The laws prescribe the provision to be made for the wife in case of divorce, con fiding to the courts however some degree of discretion in fixing the amount of ali mony.
It is very questionable, says Chancellor Kent, whether the facility with which divorces can be procured in some of the States be not productive of more evil than good; and he states that he has had reason to believe, in the exercise of a judicial cognizance over numerous cases of divorce, that adultery was sometimes committed on the part of the husband for the very purpose of the divorce.
(Kent's Commentaries ; Ency. Americ. Upon the general advantages of indis solubility, as opposed to unlimited di vorce, see Hume's Finlay on Polygamy and Divorce ; Paley's Moral Philosophy ; and the judgment of Lord Stowell in Evans v. Evans, 1 Hagg. Repts., 48; Milton, in his famous treatise, advocates the in creased facility of obtaining a divorce ; and see also Gibbon, Decline and Fall, c. 44.) • •