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It’s The Legal Genealogist‘s mantra — the phrase repeated time and again, over and over.

To understand the records, we have to understand the law — and not just the law in general, but the law of the time and the place.

AZ.divorceThat’s because, so very often, it’s the law that provides the reason why our ancestors did what they did when they did it and where they did it.

You can see this, just as one example, in the book of early statutes of Arizona — the book I was poking around in last night as I prepare for this weekend’s Annual Meeting and Seminar of the Family History Society of Arizona.

Consider, from that volume, the following facts:

• In Arizona, as of the very first set of territorial laws adopted in 1864, no formal court action was needed to terminate any marriage if it was between parties who weren’t allowed to marry, such as those too closely related or where one of the parties was already married. But, the law went on, no decree of divorce or other legal process was needed to end a marriage “solemnized when either of the parties was insane or an idiot” or a marriage “between a white person and a negro, … if solemnized within this Territory.”1

• That same early law provided that if either of the parties to a marriage was under the age of legal consent at the time of the marriage and they separated while that person was still underage, “the marriage shall bo deemed void without any decree of divorce or other legal process.”2

• That same law provided that if either husband or wife was sentenced to life in prison, “the marriage shall bo thereby absolutely dissolved, without any decree of divorce or other legal process — and no pardon granted to the party so sentenced shall restore such party to his or her conjugal rights.”3

So… can’t find a divorce that you think should exist?

Consider whether the law may not have required one…

On the other hand, consider the following facts:

• That same 1864 statute provided that you couldn’t get a divorce unless you’d lived in the Territory for a year or, in the case of a marriage in Arizona, unless you’d lived in the Territory from the date of the marriage to the day you filed for divorce.4

• And you couldn’t get a divorce at all if it was based in collusion (you and your spouse cooking up the grounds just to get free of each other) or if you were also guilty of whatever matrimonial offense you were accusing your spouse of having committed.5

So… still can’t find a divorce that you think should exist?

Consider whether the law may not have allowed it in that case…

Now those laws changed — and changed rapidly. By 1865, the residency requirement had dropped from a year to six months,6 and court action was generally required to end any marriage. The grounds for divorce continued to change and expand as well. So don’t be surprised to find that something that wasn’t required or allowed in one year was required or allowed in the next.

Bottom line: in this vital area of human activity, it’s often going to be the law that provides the reason why our ancestors did what they did when they did it and where they did it.

And if you’re around in Arizona this weekend — for a Friday night session at the Granite Reef Senior Center in Scottsdale and/or the Saturday sessions at the Central United Methodist Church in Phoenix — come on out and join me and the Family History Society of Arizona. We’ll be talking about this very topic of the law and our research, and about indirect evidence, using court records, our elusive female ancestors and tax lists as genealogical resources. Online registration is closed, but walk-ins are welcome, so you can still register at the door.


SOURCES

  1. John P. Hoyt, compiler, The Compiled Laws of the Territory of Arizona, 1864-1877 (Detroit, Michigan : Richmond, Backus & Co.), 318; digital images, Google Books (http://books.google.com : accessed 15 Mar 2016).
  2. Ibid.
  3. Ibid., at 319.
  4. Ibid.
  5. Ibid.
  6. Ibid., at 324.
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