1829 and new york divorce statute and marital exits and limited divorces

The purpose of this essay is to present New York's divorce statute, a statute which held sway in that jurisdiction from its passage in 1787 until well into the 20th century. The law assumes a certain understanding of marriage and divorce which is no longer shared but lies behind the law, religion, literature, politics and social life of the 18th through mid-20th centuries. That basic understanding is laid out in more detail in Hendrik Hartog's helpful law review article, "Marital Exits and Marital Expectations in Nineteenth Century America," 80 Geo. LR 95 (1991).

Two Preliminary Points

The principal point Hartog makes is that divorce was not the opposite of marriage in the nineteenth century. In other words, it wasn't the "option" if marriage didn't work out between two individuals. Divorce was seen as a public, and not private act, an act only permitted by the legislature in order to protect and recognize the sacredness of marriage. In other words, divorce was only permitted if the acts you did so undermined the basic publicly shared understanding of marriage that the institution of marriage would be hurt more by having you continue to be married than by securing a divorce. In that connection, then, the Chancellor (judge in a court of equity, where divorces were granted) often refused to grant a divorce, even if both spouses were more than eager to be rid of each other. He would refuse to do so simply because divorce wasn't a "private" option. Adultery, as we will see in the next essay, was the sole ground for divorce. But, of course, there were hitches and prevarications and ways of getting around the law. More of that below.

A second point may be mentioned more briefly. One of the arguments that was often bandied about in the early 19th century was that divorce ought not to be permitted on a "impairment of contract" basis. In other words, the argument was made that the US Constitution, which forbade any action undoing a contract already made, might apply to divorce. However, it was decided early in the 19th century that the federal courts ought to stay out of divorce law, and that therefore the federal constitution really couldn't be interpreted to apply to the marriage "contract." But I would like to see someone work through that issue in more detail somewhere...

Marriage Contracts Which were Voidable

The NY statute (2 Revised Statutes of New York (1829)) is divided into three titles: (1) actions which make a marriage void, that is, something that never took place in the eyes of the law; (2) actions which make divorce permissible; (3) the remedy of a "limited divorce" or legal separation. Let's take one at a time.

I. Voiding the Marriage. The law provided that "the chancellor may, by a sentence of nullity, declare void the marriage contract, for either of the following causes, existing at the time of marriage..." When we see the word "either," we are expecting two causes to be listed, but there are five. On what grounds may a marriage become a "nullity?" (1) If one or both of the parties had not attained the age of legal consent (which age is not given here); (2) If either party had a spouse still living and the marriage was still in force (a much more common problem than you might imagine); (3) If either of the parties was an "idiot or lunatic" (those terms had a specific meaning in the 19th century--in the 21st century almost any male would fit under these terms; (4) If consent of one of the parties was obtained by fraud or force (I wonder what the legislature was thinking here....); and (5) If one of the parties was "physically incapable" of entering into the "marriage state" (does this mean a man's impotence or a woman's infertility?). Can't you see how this definition just invites you to plunge into the intricacies of 19th century family and relational life in order to "enflesh" the statute? Alas, I cannot do that here, though a later essay gives one racy tale.*

[*The statute is in Part II, Title II, Sec. 20, p. 142 of Vol. 2 of the 1829 Revised Statutes.]

New York's law is so clear and so systematic tha the next several sections (21-37) go through these reasons one by one in order to tell how a marriage contracted with such a disability may be voided. For example, a bill to annul a marriage on the ground that one of the parties was under the age of legal consent must be brought by the parent or guardian entitled to the custody of the child, or if such person was unavailable, by a "next friend" (the law of "next friend" would be interesting to explore...). In no case, however, could a marriage be annuled by the party who was of legal age at the time of the marriage. Sec. 21.

Or, with respect to the second reason, such a bill might be brought on the application of either of the two parties or by a former husband or wife. Yet, # 2 could get very complicated very quickly, and the statute recognizes this. What if there are kids of this new relationship before a former spouses surfaces in order to void the marriage? Does the issue of the new relationship inherit? Well, the law says that if the subsequent marriage was contracted in good faith and with the full belief of the parties that the former spouse was dead, the issue of the new relationship should be entitled to succeed to the real and personal estate of the parent who, at the time of the new marriage contract, was competent to contract. Nice solution. Secs. 22-23.

Let's move to lunacy and idiocy. Volumes could be written on the definition and application of these terms in law before the middle of the 20th century. Sec. 29 defines the terms this way: "The term 'lunatic,' in the previous sections, shall extend to every person of unsound mind, other than idiots." Don't you kind of feel that they were groping in the dark? Are we any better off? Well, Secs. 24-28 go into the law of lunacy and idiocy with respect to nullifying a marriage contract. A relative of an idiot may bring a bill in equity to avoid the marriage at any time while either party is living. Sec. 24. Things are similar with respect to a lunatic. Sec. 25. However, the law at the time realized that while idiocy was incurable, lunacy might be only a temporary condition, and Sec. 27 recognized this distinction. The marriage of a lunatic may be declared void on the application of the lunatic once he has regained his reason, though if the lunatic was restored to a sound mind and continued to live with the the spouse ("freely cohabited as husband and wife), "no sentence of nullity shall be pronounced.

The same type of analysis applies to those married through force or fraud, with the proviso that the custody of any issue born to the couple joined by force or fraud would be given to the innocent parent. Sec. 33. Finally, a suit to annul a marriage on the ground of physical incapacity had to be brought by the "injured party" (now, that is an interesting term. The law, of course, meant that the "injured party" was the party who was physically "whole," while today we might think that the "injured party" was the one who was, well, disabled) within two years from the "solemnization of the marriage." In all proceedings to void a marriage, satisfactory evidence of the existence of the facts on which the allegations rest must be produced. Now you can see how the fun begins.

But, before we get to one "fun" case, let's go through the divorce statute.

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