Divorce is the disruption of the legal tie between husband and wife. The desire to obtain a release from the matrimonial bond has existed under all systems of law or custom. In heathen nations, such release has often been permitted on very insufficient grounds. The Romans of the late republic and the empire permitted divorce at the will of either spouse; but a husband divorcing without cause forfeited the wife's dowry. The Emperor Constantine was the first to prohibit divorce at the mere will of the parties; after some fluctuations in the state of the law, the grounds which would justify husband and wife respectively in divorcing were settled by Justinian. These changes in the law were partly due to the introduction of Christianity.
The Jewish law of divorce is contained in Deut. xxiv. 1-4. The Christian view of marriage is declared in Matt. xix. 9; Mark, x. 9-12; Luke, xvi. 18; and 1 Cor. vii. Marriage was held by the early Christians to be a sacred tie, not to be dissolved except for unfaithfulness. By the canon law it was regarded as a sacrament, and the tie could not be broken, even in the case of adultery, except by a papal dispensation. In cases of misconduct, a separation a mensa et thoro might be decreed; or if the marriage had not been regularly contracted, it might be declared null ab initio. Suits for separation, or for a declaration of nullity, belonged to the ecclesiastical courts. These rules of the canon law were not uniformly adopted by European states; but in 1562 the Council of Trent established in Catholic countries the rule that marriage should be deemed indissoluble, even after adultery.
Many of the Reformers disputed the Catholic view of marriage. For reasons stated by Milton in his tract on the subject, they permitted a certain liberty of divorce. But in England the old rule held its ground till 1857-58; marriage could only be dissolved by a special act of parliament. A husband petitioning for such an act was required first to sue for a separation, and to bring an action for damages against the seducer of his wife. Divorce, therefore, was possible only for the rich.
By an Act of 1857 the jurisdiction in divorce and matrimonial causes was transferred to a new civil court, which since 1873 has formed part of the High Court of Justice, Probate, Divorce, and Admiralty Division. A decree of divorce may now be pronounced by a single judge, trying the case with or without a jury; but the decree is a decree nisi (i.e. a decree, unless cause be shown to the contrary), which cannot be made final until six months have elapsed. A husband may obtain a divorce on the ground of his wife's adultery; he may also obtain damages against the co-respondent. A wife may obtain a divorce on the ground of the husband's adultery, if aggravated by cruelty, incest, bigamy, rape, &c., or by desertion without cause for two years. The law is therefore unequal as between husband and wife; the reason of the inequality is, that unfaithfulness on the part of a wife throws doubt on the legitimacy of the children of the marriage, while unfaithfulness on the part of the husband does not. Mere desertion, however long continued, is not ground for a divorce, but for an action for restitution of conjugal rights. The husband may be ordered to pay an alimentary allowance to his divorced wife; and the court may make orders in respect of the custody, maintenance, and education of the children of a dissolved marriage. A petitioner who is himself or herself in fault is not entitled to the remedy of divorce; thus, the petition of a husband may be dismissed on the ground of recrimination, if he has himself been unfaithful; and if the wife, as sometimes happens, refuses to press the countercharge, it may be the duty of the Queen's Proctor to intervene and call the attention of the court to the facts. The petition may also be dismissed on the ground of collusion or connivance, if, for example, the husband has encouraged another man to make improper advances to his wife; or on the ground of condonation, if he has forgiven her, or continued to cohabit with her after discovering her offence. Similar rules apply to the petition of a wife. The confession of an accused party is evidence against him or her; but proof of this nature ought to be received with caution. If the respondent is of unsound mind, and therefore unable to plead, the petitioner will not be allowed to proceed with his case. Divorced persons are free to marry again; they cannot require a clergyman of the Church of England to marry them; but a clergyman who refuses must permit the use of his church for the purpose.
In Scotland, since the Reformation, the courts have decreed divorce, on the petition of either spouse, on the ground of adultery. An Act of 1573 makes desertion without cause for four years a ground for an action of adherence; and, if redress is not obtained by that means, decree of divorce may be pronounced. It is not permitted that marriage should take place between offending parties. In case of divorce, the offending party forfeits all pecuniary benefit which might accrue from the marriage (see ALIMENT). Separation may be obtained on the ground of ill-usage, and perhaps desertion. Bars to divorce are condonation, connivance, collusion, but not recrimination.
In France, divorce was established during the Revolution, abolished under the Empire, and restored by a law of 1884, which permits husband or wife to claim a divorce on the ground of adultery, cruelty, or conviction for any infamous crime. In most Protestant countries, divorce is granted for adultery, and other reasons. In some Protestant German states, divorce is scandalously easy; the divorces granted by the Unitarian authorities at Klausenburg, Transylvania, are notorious. In all Mohammedan countries, divorce is extraordinarily easy, a few words of repudiation from the husband practically sufficing to loose the marital bond.
In America, the laws of the states vary. In South Carolina, at one time, divorce was entirely unknown. In most of the states, adultery, ill-usage, and desertion are now regarded as good reasons for divorce; in some, drunkenness, imprisonment, and even incompatibility of temper are added to the list. There are in the United States no ecclesiastical or other specially constituted matrimonial courts; as a general rule, the civil courts have jurisdiction to dissolve the marriage of a party who is a citizen thereof, or domiciled therein; but there is an appeal to the Federal courts in cases where the state courts have mistaken the limits of their jurisdiction.
In England, during 1850-93, the petitions for judicial separation and for divorce numbered respectively 3467 and 13,642, of which 1173 and 9415 were successful. In the United States, during 1867-86, there were 328,716 divorces granted—216,733 of them to wives, and 126,557 for desertion, 66,635 for unfaithfulness. In France, between 1884 and 1891, there were 45,422 petitions for divorce, of which 40,301 were granted, and 2528 compromised.
Questions frequently arise as to the competency of a court to annul a marriage contracted in another country on grounds which would not in that country be regarded as sufficient. As a general rule, the courts of a country have jurisdiction in matrimonial causes over all persons bonâ fide domiciled therein. But the English courts would probably refuse to recognise the dissolution of an English marriage by a foreign court on grounds not held sufficient in England. See Eversley, The English Law of Personal and Domestic Relations (1885), Lord Fraser's works on the Scotch law, and the American works by Reeves and Schouler; also the articles in this work on MARRIAGE, ADULTERY, HUSBAND AND WIFE, PARENT AND CHILD.