In Roman law marriage was regarded as a voluntary union which might be terminated at any time by the consent of the parties. No legal process was required, although the abuse of the power of divorce was sometimes punished. If a wife had not passed under the manus of her husband, her father might withdraw her from the union against the wishes of both parties. A constitution of Antoninus Pius limited this power. Until the time of Justinian divorce by consent of both parties does not appear to have been subject to any restriction. Justinian, however, allowed it only in three specified cases, viz., for impotency, or when either party desired to enter on a monastic life or was for a long time in captivity. “At a later period Justinian enacted that persons dissolving a marriage by mutual consent should forfeit all their property and be confined for life to a monastery, which was to receive a third of the forfeited property, the remaining two-thirds going to the children of the marriage. This severity, so much at variance with the Roman spirit, indicates the growing power of the clergy (ut non Dei judicium contemnatur)? (Hunter’s Roman Law, p. 500.) These prohibitions were repealed in the next reign. Divorce by the husband against the wish of his wife was a power much more likely to be abused than that of dissolving marriage by mutual consent. Although the legal right was recognized, it is said not to have been acted on for a period of 500 years, and Spurius Carvilius is said to have been the first who put away his wife for barrenness. Harshness in the exercise of the power was condemned by public opinion, and sometimes punished by the authority of censors. L. Antonius, a senator, was expelled from the senate for a harsh divorce of a young wife. The wife who had not come under the manus of the husband had the same power of repudiating the marriage at will. Later legislation curbed this excessive licence. By the lex Julia et Papia Poppaea, a husband divorcing a wife for adultery might retain one-sixth of her dowry; for any smaller offence, only one-eighth. When a husband was guilty of adultery he had to repay the dowry at once; if the fault were less serious, in six months. Constantine allowed the wife to divorce the husband in the following cases :— 1, for murder; 2, for being a preparer of poison; 3, for violating tombs. Just causes for repudiation by the husband were—1, adultery; 2, preparing poisons; 3, being a procuress. A wife divorcing her husband for other than the specified grounds forfeited the dowry, and might be punished by deportation. Similarly a husband lost his interest in the dowry of his wife by an injurious divorce. Similar provisions are to be found in the legislation of Honorius and Theodorus (421 a.d.), of Theodosius and Valentinian (449 A.D.) Justinian settled the grounds of divorce as follows: —The wife could divorce her husband—1, for conspiracy against the empire; 2, attempting her life; 3, attempting to induce her to commit adultery; 4, wrongfully accusing her of adultery; 5, taking a paramour to his house or frequenting any other house in the same town with a paramour. On a divorce for these reasons a wife recovered her dowry, and obtained the husband’s portion as well. If she divorced for other reasons she forfeited her dowry, and could not marry for five years, as in the legislation of Theodosius and Valentiuian. So a husband might justly divorce his wife for—1, concealment of plots against the empire; 2, adultery; 3, attempting her husband’s life, or concealing plots against him; 4, going to baths or banquets with other men; 5, remaining from home against her husband’s wish; 6, going to circus, theatre, or amphitheatre against his wish. In such cases the husband retains the dowry for life, or if he has no children absolutely. In other cases penalties as fixed by previous legislation of Theodosius and Valentinian apply. The grounds for divorce specified in these various enactments are an interesting commentary on contemporary manners.

These experiments in divorce legislation display anxiety to regulate the relationship of marriage as a purely civil institution, with a view mainly to public decorum and the comfort of individuals. When marriage had manifestly failed it was no longer worth preserving, and it had failed when either of the parties showed a desire to withdraw from the alliance. At the same time an innocent party must be protected against the caprices of an unjust spouse, and such protection was sought by the device just described. It is a remarkable illustration of the Roman view of marriage that, in view of what must have been the great social evil of capricious divorce, the right of either party to dissolve the marriage was never successfully questioned. From the pure Roman to the canon law the change is great indeed. The ceremony becomes sacred, the tie indissoluble. Those whom God hath joined let not man put asunder, was the first text of the new law of marriage, and against such a prohibition social convenience and experience pleadedjn vain. While marriage once created became indissoluble, the impediments to marriage also multiplied. The canon law annulled a marriage ab initio for causes which we should now consider wholly inadequate. The tie of consanguinity was extended to the eighth generation; and affinity, it was held, might be established by adulterous intercourse without marriage. The power of dispensing with canonical disabilities, and the power of annulling marriage on the ground of such disabilities, belonged to the church, and were important aids to its influence in society. In countries which have embraced the doctrines of the Reformation, a relaxation of the law of divorce has generally followed the changes of religion—whether immediately, as in Scotland, or indirectly, as in England. In Roman Catholic countries the theory of the canon law still rules.

The history of divorce in English law is particularly interesting. Down to the passing of the Divorce Act of 1858, the theory of the law of England was the same as the theory of the Roman Church. There were attempts during the period of the Reformation to introduce a greater licence of divorce, and in the Reformatio Legum Ecclesiasticarum (a code of ecclesiastical law projected by a royal commission, but never enacted) the leaders of the Reformation sanctioned principles which would even now be considered liberal. Divorce was to be granted for adultery, and the innocent spouse was to be permitted to marry again. Other grounds for divorce were specified, such as desertion and continued absence, and savageness of temper. Separation a mensa cl thoro was to be superseded by this more complete remedy. And the more advanced Reformers advocated even greater liberty of divorce. The nature of their proposals, and the arguments by which they reconciled them with the language of Scripture, may be studied in Milton’s tractate on the Doctrine and Discipline of Divorce, addressed to the Parliament of England. But the law remained unchanged. The constitution of marriages belonged to the jurisdiction of the ecclesiastical courts. The tie was indissoluble. The marriage, indeed, might be declared null and void in certain cases, e.g., where the parties were within the prohibited degrees of consanguinity or affinity. This proceeding was not a dissolution of marriage so much as a declaration that no real marriage had taken place between the parties. Divorce a mensa et thoro was granted for adultery and cruelty. Here the marriage, being originally good, was not dissolved, but a separation was ordered either for a limited or an indefinite time. The spouses were not permitted to marry again, But while the law remained unchanged, the practice of granting complete divorces by private Acts of Parliament had come into existence. The legislature did in particular cases that which it refused to do by a general law. Two conditions were in general necessary to satisfy Parliament.

1st, A divorce a mensa et thoro had to be obtained from the ecclesiastical court. 2d, An action for damages had to be brought against the adulterer in the civil court for criminal conversation. The latter was not absolutely necessary, and appears to have been regarded as a safeguard against divorce being granted to persons who had connived at the acts of adultery, or had themselves been guilty of misconduct in the marriage state. The passing of these Acts through Parliament became a matter of as much formality as a proceeding in an ordinary law court. The two Houses passed standing orders on the subject, under which bills on divorce were argued before the law lords by professional advocates, and generally neither the House of Commons nor the lay lords interfered. By this characteristic evasion, the law of England completely changed its practice while still maintaining its ancient theory of divorce. Probably the anomalous character of the remedy might not have brought about a change but for the great practical evil of the expense attending the proceedings. Three suits— ecclesiastical, civil, and parliamentary—were necessary. Divorce became a remedy for the rich. The poor were driven to bigamy. Yet it was not until 1857—and not then without determined resistance—that this disgraceful state of things was changed. A commission appointed in 1850 recommended the establishment of a regular court for divorce, and that divorce should be granted for the wife’s adultery but not for the husband’s unless aggravated by other offences. Bills constructed on these principles were introduced into Parliament, and successively abandoned or lost, until in 1857 the ministry of the day by great exertions carried the bill which is now the Act of 20 and 21 Vict. c. 85. Notwithstanding the hostility it excited, the bill proposed little more than a consolidation of jurisdictions; and proceedings in the Divorce Court have now, with few exceptions, the same object and result as the former proceedings in Parliament and in the civil and ecclesiastical courts. The action for damages for crim. con. is represented by the adulterer being made a party to the husband’s suit. Full divorce is granted on the principles usually recognized by the House of Lordsj and the other remedies are such as might formerly have been granted by the ecclesiastical court.

The following statement embraces the most important provisions of the Act :—

All jurisdiction in matters matrimonial {i.e., in respect of divorces a mensa et thoro, suits of nullity of marriage, of jactitation of marriage, for restitution of conjugal rights, &c. ), shall cease to he so exercisable, and shall in future be exercised by a new court, to be called the “Court for Divorce and Matrimonial Causes.” The Lord Chancellor and other judges are named as members of this court, along with the judge of the new constituted Court of Probate, who is to be the judge ordinary of the new court. Divorce a mensa et thoro is under that name abolished, but a new remedy called judicial separation is introduced, which shall have the same effect, and such other legal effect as in the Act mentioned. This remedy may be obtained by either husband or wife, on the ground of adultery or cruelty, or desertion without cause for two years and upwards. At the same time it is provided that a wife deserted by her husband may apply to a police magistrate or justice of the peace for a protection order, by which her earnings and property acquired since the commencement of the desertion may be protected from her husband and his creditors, and belong to herself as if she were an unmarried woman. In all cases except dissolution of marriage, the divorce court shall act on “principles and rules which in the opinion of the said court shall be as nearly as may be conformable to the principles and rules on which the ecclesiastical courts have heretofore acted,” subject of course to the rules and orders under the Act. Where a decree of separation has been obtained, in the absence of the husband or wife, as the case may be, it may be reversed on proper cause shown. In the case of judicial separation, the wife shall be treated in respect of any property she may acquire as if she were an unmarried woman; on her death it will descend as it would have done if her husband were dead; and should she again cohabit with her husband, any property she may be entitled to shall be held to her separate use, subject to any agreement she may have made with her husband when separated. So also a judicially separated wife should be treated as an unmarried woman for purposes of contract and in civil proceedings generally. The most important section of the Act is that under which a marriage may be dissolved. ‘ ‘ It shall be lawful for any husband to present a petition to the said court praying that his marriage may be dissolved on the ground that his wife has since the celebration thereof been guilty of adultery; and it shall be lawful for any wife to present a petition to the said court, praying that her marriage may be dissolved, on the ground that since the celebration thereof her husband has been guilty of incestuous adultery, or of bigamy with adultery, or of rape, or of sodomy, or bestiality, or of adultery coupled with such cruelty as, without adultery, have entitled her to a divorce a mensa et thoro, or of adultery coupled with desertion without reasonable excuse for two years and upwards.” Incestuous adultery includes adultery committed with a woman within the prohibited degrees of consanguinity and affinity. On a husband’s petition for divorce the alleged adulterer must be made a co-respondent, unless the court permits otherwise, and one of the parties may insist on trial by jury. And the court is to take special care to satisfy itself, not only as to the fact alleged, but as to the existence of anything like connivance or condonation on the part of the petitioner; and it shall inquire at the same time into any counter charge made against the petitioner. When the court is not satisfied as to the facts, or finds connivance or condonation or collusion, the petition must be dismissed. If the court is satisfied on these points, a decree dissolving the marriage may be pronounced; but the court shall not be bound to produce such decree, if it finds that the petitioner has been guilty of adultery, or unreasonable delay in prosecuting the suit, or of cruelty, or desertion, or such neglect and misconduct as has ’ conduced to the adultery. The court may decree the payment of alimony by the husband to the wife. The husband may in his petition claim damages against the co-respondent, and such claim shall be tried according to the same or like rules and regulations as actions for criminal conversation at common law, and the damages shall in all cases be ascertained by a jury; but the court has power to direct the application of the damages, in whole or part, to the benefit of the children of the marriage, or the maintenance of the wife. And the co-respondent, if the case is established against him, may be ordered to pay the whole or any part of the costs. In proceedings for judicial separation, or nullity or dissolution of marriage, the court may make interim or final orders as to the custody and maintenance of the children. Questions of fact may be tried before the court itself or a jury, or issues of fact may be directed by the common law court. Every petitioner in a case of judicial separation, nullity, dissolution, or jactitation of marriage, must file an affidavit verifying his petition, and stating that there has been no collusion. In any case of divorce or judicial separation for wife’s adultery, the court may order the settlement of any property to which the wife may be entitled, for the benefit of the innocent party or the children of the marriage. Appeals may be made from the judge ordinary, within three months, to the full court, and from that court to the House of Lords. By the 57th section, after a dissolution of marriage, “it shall be lawful for the respective parties thereto to marry again, as if the prior marriage had been dissolved by death.” Here follows a singular compromise, marking the conflict of opinions through which the Act had to pass. No clergyman of the United Church of England and Ireland shall be compelled to solemnize the marriage of any person whose former marriage has been dissolved on the ground of his or her adultery, or shall be liable to any penalty for refusing to do so. But any minister of a church or chapel so refusing to solemnize the marriage of persons who would otherwise have been entitled to have the service performed in such church or chapel shall permit any other clergyman of the same diocese to perform such marriage in such church or chapel. The common law action for criminal conversation is abolished.

Acts amending the Divorce Act were passed in 1858, 1859, 1860, 1864, 1866, 1868, and 1873. The Amendment Act of 1859, byamost unhappily worded section, gives power to the court, after a decree of nullity or dissolution, to revise the marriage settlements, and apply the property to the benefit of the ‘ , children of the marriage or their respective parents.’’ It has been held that the court has no power to alter settlements unless there are children of the marriage alive at the date of the order. This Act also makes husband and wife competent and compellable to give evidence touching cruelty or desertion in a wife’s petition for dissolution of marriage.

The Act of 1860 contains the following important clause (§ 7). “Every decree for a divorce shall in the first instance be a decree, nisi, not to be made absolute till after the expiration of such time, not less than three months from the pronouncing thereof, as the court shall by general and special order from time to time direct and during that period any person shall be at liberty to show cause why the said decree should not be made absolute, by reason of the same having been obtained by collusion, or by reason of material facts not having been brought before the court; and on cause being so shown, the court shall deal with the case by making the decree absolute, or by revising the decree nisi, or by requiring further inquiry or otherwise as justice may require; and at any time during the progress of the cause, or before the decree is made absolute, any person may give information to her Majesty’s proctor of any matter material to the due decision of the case, who may thereupon take such steps as the attorney-general may deem necessary or expedient; and if from any such information or otherwise the said proctor shall suspect that any parties to the suit are, or have been, acting in collusion for the purpose of obtaining a divorce contrary to the justice of the case, he may, under the direction of the attorney general, and...