DIVORCE. The dissolution or partial sus pension, 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 vincula matrimony %; the suspension, di vorce from bed and board, a mensa et Moro. The former divorce puts an end to the marriege; the later leaves it in full force. The term divorce is sometimes also applied to a sentence of nullity, which establishes that a supposed 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, however, con fines the signification of divorce to the dissolution of a valid marriage. What has been known as a divorce a mensa 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 ac ceptation of the term. For the other branches of the subject, see SEPARATION A MENEM ET THORO ; NULLITY OF MARRIAGE.
Marriage, being a legal relation, and not (as sometimes supposed), a mere contract, can only be dissolved by legal authority.
The relation originates in the consent of the parties, but, once entered into, it must continue until the death of either husband or wife, unless sooner put an end to by the sovereign power. In Maynard v. Hill, 125 U. S. 210, 8 Sup. Ct. 723, 31 L. Ed. 654, it is said that whilst marriage is often termed by text writers and in decisions of courts a civil contract, it is something more. When the contract to marry is executed by the marriage, a relation between the parties is created which cannot change. Other con tracts may be modified, restricted, or en larged, or entirely released upon the consent of the parties, but not so with marriage. The relation once formed, the law steps in and holds the parties to various obligations and liabilities. The supreme court then ap proves the views laid down in Adams v. Palmer, 51 Me. 483, where it is said that when the contracting parties have entered into the marriage state, they have not so much entered into a contract as into a new relation, the rights, duties, and obligations of which rest not upon their agreement, but up on the general law of the state, statutory or common; they are of law, not of contract.
It was of contract that the relation should be established, but being established the pow er of the parties as to its extent or dura tion is at an end. Their rights under it are determined by the will of the sovereign as evidenced by the law. They can neither be modified nor changed by any agreement of the parties. It is a relation for life and the parties cannot terminate it at any short er period by virtue of any contract they may make. "Marriage has been said to be some thing more than a mere contract, religious or civil; to be an institution" ; L. R. 1 P. & D. 130. In England, until the middle of the last century no authority 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 ex clusively to the various ecclesiastical courts; and they were in the constant habit of grant ing what were termed divorces a mensa at thoro, for various causes, and of pronounc ing sentences of nullity ; but they had no power to dissolve a marriage, valid and bind ing in its origin, for causes arising subse quent to its solemnization. For that pur pose recourse must be had to parliament; 2 Burn, Eccl. Law 202 ; Macq. Parl. Pr. 470 (after having first obtained an ecclesiastical decree a menu; at thoro and recovered dam ages against the adulterer in an action of trim. con. This practice began about 1669). But in 1857 a court was created, "The Court for Divorce and Matrimonial Causes," upon which was conferred exclusively all jurisdiction over matrimonial matters then vested in the various ecclesiastical courts, and also the jurisdiction theretofore exer cised by parliament in granting divorces. At present divorce causes are heard, in the first instance, in the Probate, Divorce and Admiralty Division of the High Court of Justice, whence an appeal lies to the Court of Appeal.