Select Page

The price tag for cheaters

They didn’t really mean that, did they?

The Legal Genealogist is probably more at home in those old statute books than most folks.

Broken Red Cheating HeartI certainly poke around in them more than most folks do.

But even I am occasionally taken aback.

As I was last night, in preparing for some talks tomorrow (Saturday), at the Irish Family History Forum in Bethpage, New York, when I came across the exact language of one section of New York state law.

It appears in Chapter VIII of the Revised Statutes of the State of New York, published in 1829. That chapter is entitled Of the Domestic Relations. Then it’s broken down into titles, and this is in Title I, Of Husband and Wife. And then you have articles, and this is in Article 3, Of Divorces, dissolving the Marriage Contract.

It’s section 49 of that article, and it reads, in full:

Whenever a marriage shall be dissolved, pursuant to the provisious of this Article, the complainant may marry again during the life time of the defendant; but no defendant convicted of adultery, shall marry again, until the death of the complainant.1

Read that last part again: โ€œno defendant convicted of adultery, shall marry again, until the death of the complainant.โ€

And even I have to ask myself… they didn’t really mean that, did they?

You see, there was one, and only one, ground for divorce in New York when that statute became law. Starting with the passage of the very first divorce law in the Empire State in 1787,2 and continuing all the way up to an amendment of the law in 1966, effective 1967,3 the single basis for granting a divorce was adultery.

Oh, there were attempts to broaden the grounds, to include things like desertion. Those were all defeated. Repeatedly. In 1813, 1827, 1840, 1849, 1850 and 1855, just for starters.4

When it came to getting a divorce in New York, it didn’t get easier for a long long long time. Instead the law was changed to allow judges to say no to a divorce even if adultery was proved, if it looked like the two sides had connived in getting the evidence, then to make proof of adultery harder, then to require longer waiting periods even in the court process itself.5

It wasn’t until 1967 that New York finally permitted divorce on grounds of cruel and inhumane treatment, abandonment for more than two years, imprisonment for more than three years, and after a legal separation of more than two years.6

So… anybody whose spouse got a New York divorce until 1967 was convicted of adultery — and couldn’t remarry.

That’s what the law said.

But… but… but… did cheaters really not get to remarry?

Really?

Well, um, yeah, actually. They really didn’t get to remarry.

At least not initially.

Not in New York.

You see, the whole notion here was that divorce wasn’t something to be granted lightly, and that those who strayed shouldn’t be free to stray again.

And for more than 100 years, that’s where New York law stood. An adulterer couldn’t legally remarry in New York as long as the spouse he or she had cheated on was still living.

The law was finally changed, in 1879. The courts were then allowed to modify the divorce decree and allow the guilty party to remarry on three conditions: (1) five years or more had passed since the divorce was ordered; (2) the cheated-on spouse had remarried; and (3) the cheating spouse had exhibited “uniformly good conduct” during the intervening years.7

And, yes, people did get around the law, both before and after 1879, by going out of New York to divorce and/or to remarry, which may of course explain why some New York ancestors went missing from New York at various times in their lives.

So for genealogists, understanding this law can help put our ancestors’ actions into context.

But still… for them…

Quite a price to pay for a cheating heart…


SOURCES

  1. ยง49, Article 3, Title I, Chapter VIII, in The Revised Statutes of the State of New-York, 3 vols. (Albany, N.Y. : Packard & Van Benthuysen, printers, 1829), II: 146; digital images, Google Books (http://books.google.com : accessed 19 Nov 2015).
  2. Law of March 30, 1787, chapter 69, 1787 N.Y. Laws 494.
  3. Law of 27 April 1966, chap. 254, 1966 N.Y. Laws 833, effective 1 September 1967.
  4. J. Herbie DiFonzo and Ruth C. Stern, 27 Pace Law Review 559, 564 (2007).
  5. Ibid., at 566.
  6. Law of 27 April 1966, chap. 254, 1966 N.Y. Laws 833, effective 1 September 1967.
  7. Law of April 16, 1879, chap. 164, 1879 N.Y. Laws 231; Law of May 19, 1879, chap. 321, 1879 N.Y. Laws 405.
Print Friendly, PDF & Email