DIVORCE. The dissolution or partial suspension, by law, of the marriage relation.
The dissolution is termed divorce from the bond of matrimony, or, in the Latin form of the expres sion, a vinculo matrimonii; the suspension, divorce from bed and board, a menea et thoro. The former divorce puts an end to the marriage ; the latter leaves it in full force. Bishop, Marr. & Div.* 292. The term divorce is sometimes also applied to a sentence of nullity, which establishes that a sup posed or pretended marriage either never existed at all, or at least was voidable at the election of one or both of the parties.
The more correct modern usage, con fines the signification of divorce to the dieeolution of a valid marriage. What has been known as a divorce a nzenea et thoro may more properly be termed a legal separation. So also a sentence or decree which renders a marriage void ab initio, and bastardizes the issue, should be distinguished from one which is entirely prospective in its operation ; and for that purpose the former may be termed a sentence of nullity. The present article will ac cordingly be confined to divorce in the strict acceptation of the term. For the other branches of the subject, see SEPARATION A MERSA ET THOR° j NULLITY OF MARRIAGE.
2. Marriage being a legal relation, and not (as sometimes supposed) a mere con tract, it can only be dissolved by legal au thority. The relation originates in the con sent of the parties, but, once entered into, it must continue until the death of either hus band or wife, unless sooner put an end to by the sovereign power. Bishop, Marr. & Div. c. 3. In England, until recently, no au thority existed in any of the judicial courts to grant' a divorce in the strict sense of the term. The subject of marriage and divorce generally belonged exclusively to the various ecclesiastical courts; and they were in the constant habit of ,granting what were termed divorces a mensa et thoro, for various causes, and of pronouncing sentences of nullity; but they had no power to dissolve a mar riage, valid and binding in its origin, for causes arising subsequent to its solemniza tion. For that purpose recourse must be had to parliament. 2 Burns, Eccl. Law (Phillim. ed.), 202, 203; Macqueen, Parl. Pract. 470 et seq. But by the statute of 20 & 21 Vict. (1857) c. 85, entitled "An act to amend the law relating to divorce and matri monial causes in England," a new court was created, to be called " The Court for Divorce and Matrimonial Causes," upon which was conferred exclusively all jurisdiction over matrimonial matters then vested in the va rious ecclesiastical courts, and also the juris diction theretofore exercised by parliament in granting divorces.
In this country the usage has been various. Formerly it was common for the various state legislatures, like the English parliament, to grant divorces by special act. Latterly, how
ever, this practice has fallen into disrepute, and is now much less common. In several cases, also, it has been expressly prohibited by recent state constitutions. Bishop, Marr. & Div. c. 33. Generally, at the present time, the jurisdiction to grant divorces is conferred by statute upon courts of equity, or courts possessing equity powers, to be exercised in accordance with the general principles of equity practice, subject to such modifications as the statute may direct. The practice of the English ecclesiastical courts, which is also the foundation of the practice of the new court for divorce and matrimonial causes in England, has never been adopted to any considerable extent in this country. Bishop, Marr. & Div. 28, and note.
3. Numerous and difficult questions are constantly arising in regard to the validity in one state of divorces granted by the courts or legislature of another state. The subject is fully and ably treated in Bishop on Mar riage and Divorce, c. 32. The learned author there states the following propositions, which he elaborates with great care:—first, the tribunals of a country have no jurisdiction over a cause of divorce, wherever the offence may have occurred, if neither of the parties has an actual bona fide domicil within its territory; secondly, to entitle the court to take jurisdiction, it is sufficient for one of the parties to be domiciled in the country; both need not be, neither need the citation, when the domiciled party is plaintiff, be served per sonally on the defendant, if such personal service cannot be made; thirdly, the place where the offence was committed, whether in the country in which the suit is brought or a foreign country, is immaterial ; fourthly, the domicil of the parties at the time of the offence committed is of no consequence, the jurisdiction depending on their domicil when the proceeding is instituted and the judgment is rendered ; fifthly, it is immaterial to this question of jurisdiction in what country or under what system of divorce laws the mar riage was celebrated. It should be observed, however, that the last proposition but one is not sustained by authority in Pennsylvania and New Hampshire, it being held in those states that the tribunals of the country alone where the parties were domiciled when the delictum occurred have jurisdiction to grant a divorce. 7 Watts, Penn. 349; 8 Watts & S. Penn. 251; 6 Penn. St. 449; 34 N. H. 518, and cases there cited ; 35 id. 474. And for the law of Louisiana, see 9 La. Ann. 317. In Pennsylvania, the rule has been changed by statute of 26th April, 1850, 5. See 30 Penn. St. 412, 416. And in regard to the second proposition it is to be observed that without personal citation within the state the divorce is not of binding effect in any other state. See CONFLICT OF LAWS; DOMICIL, 11.