HISTORY OF DIVORCE. in early society the hus band usually had the right of repudiating his wife, originally, perhaps, at pleasure, among some races only for cause. Primitive causes were witchcraft, drunkenness, barrenness, adul tery. in those communities in which the man became a member of his wife's family power to repudiate him was usually accorded to her or to her kinsfolk, as was the case among sonic tribes of North American Indians. Among the Athenians the husband could dismiss his wife at pleasure, and the wife could leave the hus band with the consent of the magistrate (archon). in ancient Rome the rules governing divorce depended upon the form of marriage. if the parties had entered into a religious marriage (ronfar•catio), divorce was possible only by an other religious ceremony (diffarmatio), which, like the marriage, required the coilperation of the priests. if the marriage was in form a purchase (coemptio), the wife could be reeonveyed into her original family only for grave misconduct. lf, however, the marriage was 'eonsensual'—and this type of marriage became general in the later Republic—it wa,5 dissoluble by dissent: i..e. either party could repudiate the other. To the Romans of the early Empire this freedom of divorce seemed morally right : and as late as the third century of our era the Roman jurists held that. a promise not to exercise the right of divorce under any circumstances was an immoral promise. Even when the Empire became Chris tian, the right of divorce at will was not abol ished all that was done was to impose pecuniary disadvantages upon the party who exercised the ri!dit, of divorce without good cause, or upon the party whose misconduct gave good cause for divorce. In the view of the Christian Church, however, marriage was a sacrament, and the matrimonial relation was indissoluble: and in the Middle Ages, when the Church courts ob tained jurisdiction over marriage, this view de termined the law of Europe. :Marriages might be declared null because of impediments which existed at the time of marriage, but marriages could not be dissolved because of any subsequent misfortune or misconduct. This is still the law in some of t •c European states, e.g. in Italy, Spain, and Portugal, and in Austria so far as mem•mb, Fs of tl e Roman Catholic I. Infra an. con cerned. Itnorce reappeared ‘‘itlt the Reforma tion, and was part of the programme of the I nand' Ile\ olution; and in the great majority of the European States and in Austria, as regards non l atholics) divorces call he obtained at the present time on various grounds—always for adultery and for extreme cruelty, usually for desertion, and in some States on the ground of condemnation in criminal proceedings. when the iondeinnation carries with it infanly or degra dation, and on the ground of incurable in sanity. Incompatibility, strained relations, un
conquerable aversion. etc., are grounds usually for separation only; but in some States a separation obtained on such grounds may, after a term of years, be converted into au absolute Divorce by mutual consent was per mitted by the Code Napoh'qm, and also, when the marriage was childless, by the Prussian Code of 1791; lint divorce 4)11 this ground is not per mitnal by the existing legislation of France nor by the t;e•man Imperial ('ode. In the former country the subject is now regulated by legis lative act of 1853. The idea that marriage is something more than a private relation. that it is the basis of the existing social order, and that society is interested in its maintenance, finds ex pression not only in the rule that divorce is to be granted only for cause. hut in the practice of making the official who corresponds to the Ameri can district attorney a party to every proceeding for divorce or annulment of marriage.
in England there was no common-law diction in matrimonial causes prior to the tion of a divorce and matrimonial court by act of Parliament in IS57. and the ecclesiastical courts, to which that jurisdiction was confided, consistently held the marriage tie to he solulde. .1ecordingly. before January 1, 1858, when the Nlatrimonial Causes _\et (20 and 21 Viet., c. 85) went into operation, divorces could be obtained in England tams is still the case in Ireland) only by act of Parliament. it was, deed, possible to obtain a declaration of nullity of marriage on the ground of cmisa nguinity. vious marriage of one of the parties. mental or physical ineapacit•, coercion, or fraudulent representations as to the essentials of the tion, as. for example, false impersonation. But the judgment so obtained was not a decree of divorce, but a declaration that the marriage tie between the parties had never really been tracted. A wife may now obtain a divorce on the ground of the husband's incestuous adultery: or of his bigamy with adultery: or of rape: or of sodomy: or of adultery coupled with gross cruelly: or of adultery coupled with without reasonable excuse for two years. The husband may obtain a divorce on the ground of the wife'. adultery. But neither party can tain a divorce Qu the ground of desertion alone, however icing continued. Nor will a divorce he granted should it appear that husband or wife has been guilty of recrimination by committing Ito %Male offense, or that there is collusion twe•n than in order to proeure the divorce. Parties also who have condoned the offense—that is, who after it has been discovered have sented again to live together as husband and m of be allowed to obtain a divorce.