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Re: Early divorce in America
Posted by: Barry Wood (ID *****8218) Date: January 13, 2008 at 19:51:05
In Reply to: Early divorce in America by Eva Myrick of 702

Eva -- Sorry I have been away from this site for quite a while and only saw your posts about divorce today.

You're right that legal divorce has been around for a long time. I read where you said never mind about the response, but inasmuch as this may be helpful to others, I might note a few facts on the subject here.

Actually even longer than the 4th century, as Christ told the Pharisees "Moses gave you divorce because of the hardness of your hearts ..."

On the other hand, there have been times and places since then when divorce was virtually unobtainable, due to the position of the Catholic Church that divorce was not merely a grave sin, but an absolute impossibility. You are familiar, of course, with the fight Henry VIII had with the Pope over his desire to divorce Catherine of Aragon (or, rather, to secure an annulment). The Pope would not have been involved at all except for the fact that, in medieval Europe, disputes relating to marriage were viewed as falling under the jurisdiction of the Church courts.

I don't have time to develop here the whole subject of the innumerable distinctions between "law" and "equity," the former being the province of the civil (or royal) courts, and the latter governing the church courts (or chancery). I'm not even sure whether divorce as such was ever a proper subject of suit in the courts of equity. What I learned in law school was that, at least at some point after Henry parted ways with the Pope, divorce was an action at law.

The Puritan colonies in America were remarkable for their position that marriage itself was a civil contract rather than a sacrament. A civil contract can, of course, be dissolved under certain circumstances. Thus, there were divorces in Massachusetts and Connecticut virtually from the founding of those colonies, and these were granted by the local courts. Or, to be precise, in the earliest days, the "courts" were more like councils. The separation of powers we treasure now in our legal system had not yet been set up. This is why you see minutes of the "General Court" in Massachusetts that describe legislative functions as well as judicial ones. In fact, the term "General Court" was kept for the legislature for a very long time; maybe down until the present day for all I know. At a minimum, this is why what other states call their "Supreme Court" in Massachusetts is called the "Supreme Judicial Court."

I believe that I read in one book on American legal history that at the beginning of the commonwealth, if a person wanted a divorce, it could only be granted by the General Court, and that that was the case even for a while after judicial courts were established in the counties. But as the population grew, eventually the county courts assumed jurisdiction over divorce cases.

It's a curious fact that from the time of independence until after the Civil War, New York and Pennsylvania didn't license marriages (greatly impeding our ability to research our family trees in those states!). But nevertheless the local courts still had jurisdiction over divorce cases, and the statutes set forth specific grounds for divorce. I have never heard of self-help divorce there, though I do have a problem like yours, where I know that my Ash great great grandparents (married in upstate New York around 1845) were divorced, but I have never been able to find the court record of the event.

I have never heard of 1878 as providing a watershed of some sort as to legal divorce being required or not. Except for the federal territories, divorce was always a matter of state rather than federal law, as it is to this day, so even if the law of divorce changed in some state that year, it would not have changed the same way in all other states.

I have no doubt but that there were many informal divorces in lots of places where lawyers were few, courts scarce, and people were too busy just staying alive to go to the trouble of pursuing formal legal action to end a marriage. That would have been more true before 1878 than after simply because the frontier started to disappear in the latter part of the 19th century. But I'm not aware of any law in America that expressly permitted a divorce to become effective without action by a court of some sort.

Just the other day I was reading an account of Cornelius Gatliff's divorce in Kentucky, pre Civil War. The case was heard in a nearby county rather than the county where they lived because the judge in their home county had some sort of conflict; either he was friends with Cornelius or possibly he was too friendly with his wife.

It seems that Mrs. Gatliff, per the testimony, distributed her favors rather freely, including to Cornelius's own brother, which helped Cornelius secure the divorce even though Cornelius -- after Mrs. Gatliff spurned him -- had himself brought certain other ladies home to stay the night.

Cornelius was quite wealthy, so he could afford to hire lawyers not only to start the divorce action up, but also to go to the neighboring county for trial, and pay witnesses to testify there.

I can also imagine that in some cases the plaintiff or defendant may have been granted a change of venue away from the home county simply in order to minimize the scandal that would result if the personal details of the parties' lives were aired in open court in their own backyard, so to speak.

In the case you describe, I will assume that Daniel pursued some sort of divorce action in Kansas; heaven only knows in which county. But from the facts provided, it doesn't sound to me that Anna was ever IN Kansas. Consequently, the Kansas courts would have had no jurisdiction over Anna. Personal jurisdiction over both parties to the marriage would have been required in order for the Kansas court to enter an order that to which the Pennsylvania court would be required to give "full faith and credit." This, I suspect, is the basis for Anna's ability to take her thirds of Daniel's estate notwithstanding the Kansas "divorce." Whether Daniel's children perceived of the divorce as valid or invalid, formal or informal would not have mattered. If the court in Kansas had no jurisdiction (in the eyes of the Pennsylvania Court), any purported legal action there would have been a nullity as far as the division of Daniel's estate in Pennsylvania was concerned.

The interesting twist you provide is that Anna, evidently relying on the news of the Kanas divorce, married someone else back in Pennsylvania while Daniel was still alive. But the mere fact that Anna became a "bigamist" for a time would not necessarily invalidate her right of dower in Daniel's property. If I were Daniel's lawyer, I would certainly make an argument to that effect, but where would I argue it? It sounds as though there was no court proceeding to adjudicate a termination of her dower rights until after her second marriage was a thing of the past. Certainly if her second marriage were annulled (as opposed to dissoved through divorce), and she never released the dower rights, they should have still been intact as of the date of Daniel's death.

Daniel's deed of the Pennsylvania farm to his son would have been completely ineffective to extinguish Anna's rights in that real estate without either such an adjudication, or a release by Anna of the dower rights.

Nevertheless, in most (if not all) states the dower right as to the husband's real estate was a life estate only, meaning that it terminated upon the death of the widow. The widow's right to a third of the decedent's "personal" estate, in contrast, gave her a right to complete ownership of one third of all of his property other than real estate, so that as a widow she could give good title to personal or "movable" property to anyone who bought an item of movable property from her.

Well, I hope that I have provided some information here that may be useful to you. If you ever do find a record of Daniel's alleged divorce, I would be interested in knowing about it. Good luck.

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