divorce and new york and 1829 and adultery

When a marriage couldn't be rendered a nullity (see previous essay) and thereby voided, it might be dissolved through divorce. The only ground permitted for divorce was adultery, although, as Hartog shows in his essay, couples who really wanted a divorce were often eager to collude in order to make sure this legal requirement was met. In other words, some scholars have argued that New York's strict divorce law, a law which reflected biblical teaching, actually encouraged deceptions and manipulations so that divorces could more easily be attained. But the statute was aware of these machinations (e.g., suborned testimony, collusion of the other spouse) and attempted to deal with them, though imperfectly through the statute. Let's turn to it now.

Divorce, New York Style

Sections 37-49 speak of how a marriage may be dissolved through divorce. The first three sections address jurisdictional requirements (i.e., whether the acts leading to the divorce had to happen in the state, or the parties needed to be residents of the state), but Secs. 40 and 41 get to the heart of the issue. The statute assumes that a charge of adultery has been brought through a bill in equity. Sec. 40 addresses the situation where the charge is denied; sec. 41 deals with the admission of adultery. What happens when adultery is denied? Well, I learned a new term, so let me quote the law.

"If the offense charged be denied, the court shall direct a feigned issue to be made up, for the trial of the facts contested by the pleadings, by a jury of the country, at some circuit court...," Sec. 40 (2 Revised Statutes of NY (1829), at 145).

A "feigned issue" (at first I thought that the "f" was, in fact, an old "s," but then I saw that "seigned" would have made even less sense, and so I repaired to the dictionaries) is so named because it is "fictitious," meaning that it is an issue in a court of equity which allows the calling of a jury--which, by definition, isn't done in equity. Thus, what is happening is a sort of fiction or contrivance. Blackstone speaks of the concept as follows: "As no jury can be summoned to attend this court [Equity], the fact is.. directed to be tried..upon a feigned issue. For (in order to..have the point in dispute..put in issue) an action is feigned to be brought" (Commentaries, III. 3). Thus, a feigned issue is one in which a jury, in equity, decides the truth of certain allegations.*

[*The concept of feigned issue is different in bankruptcy law, where it refers, curiously, to an issue of law and not of fact. But, I don't know why that is the case, yet...]

But often the allegations were freely admitted. The reason for this is obvious: admission is your ticket to divorce, if that is what you want. Couples would often collude, one partner would admit infidelity and then the marriage, they thought, would easily be dissolved. Bingo. But, not so fast. The law was aware of this, and so when one party confessed to adultery, the law provided that a special master would be appointed in order to look into all the facts and circumstances of the confession. The master was "to take proof of the facts charged, and to report the same to the court with his opnion thereon" (Sec. 41). As you can see in this essay, the finding of facts potentially has a real salacious dimension.

Deciding Whether to Grant A Divorce

Even if the master's investigation revealed that adultery had taken place, the court could deny a divorce for four reasons: (1) where the offense was committed "by the procurement, or with the connivance, of the complainant" (the collusion exception); (2) where the adultery had been forgiven by the spouse (the condonation exception)*; (3) where the suit was not brought within

[*Can you imagine the kind of torment that a spouse could inflict on the other under the old NY statute if they originally colluded to divorce through an act of infidelity, that the husband had committed the act, that a bill for divorce had been filed and then, at the last minute, the wife (possibly because she wanted to jerk her husband's chain) could "forgive" her husband? Well, I am sure that couples, left to their own devices, could put into effect far worse scenarios that I could even imagine.]

five years of the discovery of the adultery; and (4) where it was proved that the other spouse was likewise guilty of adultery (the recrimination exception). The last exception had the curious effect of making sure that the parties stayed married even though both were living in adultery or, worse, bigamy. Sometimes the more we try to protect a sacred thing, the dirtier it becomes in our hands...

The only problem with admitting your act of adultery, however, is that the innocent party would be permitted to remarry, while the guilty spouse was, at least under the laws of New York, not permitted to marry for the rest of his life. These rules can only be understood in the context of an earlier-mentioned point, that divorce was a public and not a private matter, and that by disrespecting the institution of marriage so significantly, you ought not to be permitted to taste again of its fruits.

Separations or "Limited Divorces"

In 1813 the New York Legislature added what was codified in 1829 as Sections 50-56, to include the option of a separation or "limited divorce," which was traditionally known as a separation a mensa et thoro (from "bed and board"). This was an option granted only to the wife, and was to be awarded only on the showing of "cruel and inhuman treatment by the husband of his wife" (Sec. 51.1) or "the abandonment of the wife by the husband, and his refusal or neglect to provide for her" (Sec. 51.3). This remedy would allow the wife to get custody of children and, if it happened under the first subsection of Sec. 51, to get monetary support from the husband. However, the husband, in his defense, was permitted to prove "the ill conduct of the complainant," and "on establishing such defence, to the satisfaction of the court, the bill shall be dismissed" (Sec. 53). The courts really did not see themselves in the business of granting easy divorces or even separations.

The problem with this statute, however, is that it contemplated that a true divorce was not permitted for reasons of cruelty or abandonment, and that you stayed married to the same person even in those circumstances. You just had to live with it. There was no "getting beyond" or "over" the past relationship. I think the stain of these statutes has worked its way into our souls to an extent, even in our modern world of easy divorce and remarriage.

The final essay presents a fairly salacious text that shows how the NY statute actually seemed to encourage seamy stories to be made public.

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