Legal Definition of Divorce

The dissolution of a marriage contracted between a man and a woman, by the judgment of a court of competent jurisdiction, or by an act of the legislature.5 min read

The dissolution of a marriage contracted between a man and a woman, by the judgment of a court of competent jurisdiction, or (Obs.) by an act of the legislature. It is so called from the diversity of the minds of those who are married; because such as are divorced go each a different way from the other. Until a decree of divorce be actually made, neither party can treat the other as sole, even in cases where the marriage is utterly null and void for some preexisting cause. A decree of divorce must also be made during the lifetime of both the parties. After the decease of either the marriage will be deemed as legal in all respects.

Divorces are of two kinds: 1. a vinculo matrimonii, which dissolves and totally severs the marriage tie; and, 2. a mensa et thoro, which merely separates the parties.

Divorce a Vinculo

The divorce a vinculo was never granted by the ecclesiastical law except for the most grave reasons. In England such a divorce bastardizes the issue, and generally speaking, is allowed only on the ground of some preexisting cause, but sometimes by act of parliament for a supervenient cause. When the marriage was dissolved for canonical causes of impediment existing previous to its taking place, it was declared void ab initio.

In the United States, divorces a vinculo are granted by the courts to which such jurisdiction is given, for certain causes particularly provided for by law.

Legal Grounds for Divorce

The courts in nearly all the states have power to decree divorces a vinculo, for causes which existed and which were a bar to a lawful marriage, as, precontract, or the existence of a marriage between one of the contracting parties and another person, at the time the marriage sought to be dissolved took place; consanguinity, or that degree of relationship forbidden by law; affinity in some states; impotence, idiocy, lunacy, or other mental imbecility, which renders the party subject to it incapable of making a contract; when the contract was entered into in consequence of fraud.

Secondly, the marriage may be dissolved by divorce for causes which have arisen since the formation of the contract, the principal of which are adultery, cruelty, wilful and malicious desertion for a period of time specified in the acts of the several states; to these are added in some states, conviction of felony or other infamous crime, being a fugitive from justice when charged with an infamous crime. In Tennessee the husband may obtain a divorce when the wife was pregnant at the time of marriage with a child of color; and also when the wife refuses for two years to follow her husband, who has gone to Tennessee to reside. In Kentucky and Maine, where one of the parties has formed a connexion with certain religionists, whose opinions and practices are inconsistent with the marriage duties. And in some states, as Rhode Island and Vermont, for neglect and refusal on the part of the husband (he being of sufficient ability) to provide necessaries for the subsistence of his wife. In others, habitual drunkenness is a sufficient cause.