That other divorce

The language of the law. Part Latin, part Anglo-Saxon, all confusing.

So the very first legislature of the Territory of Iowa sat down in Zion Church in Burlington, Iowa, in November 1838,1 and started passing laws. They provided for a militia.2 They provided for a penitentiary for up to 136 inmates.3 They set the Territory’s share of taxes collected at five percent.4 And they provided that the courts of the territory could grant a married person a divorce.5

The other divorce

The statute, enacted 29 December 1838, set out four grounds for divorce: impotence (you couldn’t get a jury trial if that was the ground asserted); adultery; extreme cruelty; and desertion. But, the statute made clear, divorce for extreme cruelty or for desertion was divorce a mensa et thoro and to be granted only in the exercise of the court’s discretion.

Divorce a what? Couldn’t those guys speak English, for cryin’ out loud?

So what was a divorce a mensa et thoro? It’s divorce “from bed and board” — “a limited divorce or separation” by court order.6 Nothing more than a legal separation. He could beat you within an inch of your life, or she could sneak off and never come back leaving you with the kids, and the best the courts could do for you was a legal separation. You were not free to marry again.

The common law on marriage and divorce was drawn closely from canon — ecclesiastical or church — law. There were a few things that allowed an ecclesiastical court to declare a marriage totally dissolved, but they had to be found to have existed before the marriage: pre-contract, consanguinity, imbecility, for example.7 Eventually an act of Parliament could totally dissolve a marriage, for adultery.8 That common law rule was generally followed in the colonial United States, though there were exceptions.

In the Massachusetts Bay Colony, for example, divorce was legalized in 1629 for reasons of “adultery, desertion for a year or two, where there was evidence of a determined design not to return, and the cruel usage of the husband.”9 The first known divorce in colonial America was that granted to Anne Clark, wife of Denis Clarke, by the Quarter Court of Boston. Denis admitted he had left Anne, mother of two of his children, and taken up with another woman with whom he’d had another two children.10 In Connecticut, starting in 1666, the courts could grant divorces for impotence, desertion and adultery, among other causes.11 On the other, more-restrictive side, Maryland’s legislature didn’t grant a divorce until 1790, and South Carolina didn’t give its courts the power to grant a divorce until well into the 19th century.12

In general, a wife granted a divorce a mensa et thoro was entitled to alimony for her support. She could ask for, and in an appropriate case, could be given custody of the children.13 She retained her right of dower in his property.14 A husband granted such a divorce had no duty to pay alimony, generally got custody of the children, and retained his curtsey rights in his wife’s estate.15

The ultimate notion behind the divorce a mensa et thoro was that such trifling matters as cruelty or desertion could be overcome by the parties and the couple could be reconciled to live together again. So, for example:

     • In 1694 New Jersey, the court in Burlington County called a separated couple in and got them to agree to forgive and forget and reunite.16

     • In New York, a chancery court granted a divorce a mensa et thoro in 1819 with the provision that “Opportunity ought to be left, and pretty freely left open, for reconciliation.”17

     • In Virginia in 1871, a divorce a mensa et thoro was granted against a wife who had returned to her father’s home because of “coarse, rude and petulant” treatment by the husband. Her reasons for leaving the husband had been rejected by the trial court and the divorce a mensa et thoro would have left her without alimony and without custody of or even visitation with her three-year-old daughter. On appeal, the court decided not to “close the door … against reconciliation” and ordered the divorce modified to give the wife “the option of returning voluntarily, with her child, to the home of her husband, to his bed and board.”18

By the way, divorce a mensa et thoro is still recognized throughout the United States,19 though it’s usually simply called by its plain-English name legal separation. It has advantages — the retention of legally-married status may protect insurance coverage, Social Security rights, joint tax filing, and military benefits, among other things — and for those whose religious beliefs preclude divorce it provides a legal framework to limit the day-to-day consequences of the marriage.

But nowhere in the United States today is divorce as limited as it was in 1838 Iowa — and certainly not in today’s Iowa!20 What a distance the law has traveled… in Iowa and elsewhere.


SOURCES

  1. Henry Sabin and Edwin L. Sabin, The Making of Iowa (Chicago : A. Flanagan & Co., 1900), 193; digital images, Google Books (http://books.google.com : accessed 22 Mar 2012).
  2. The Statute Laws of the Territory of Iowa, Enacted at the First Session of the Legislative Assembly of Said Territory, Held at Burlington, A.D. 1838-’39 (1839; reprint, Des Moines : Historical Department of Iowa, 1900), 351; digital images, Google Books (http://books.google.com : accessed 22 Mar 2012).
  3. Ibid., 389.
  4. Ibid., 446.
  5. Ibid., 189-191.
  6. Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 2, “a mensa et thoro.”
  7. William Blackstone, Commentaries on the Laws of England, Book the First: Of the Rights of Persons (Oxford : Clarendon Press, 1765), 428 (“in cases of total divorce, the marriage is declared null, as having been absolutely unlawful ab initio” (from the beginning)); html version, Yale Law School, Avalon Project (http://avalon.law.yale.edu/subject_menus/blackstone.asp : accessed 22 Mar 2012).
  8. Ibid., 429.
  9. Roderick Phillips, Putting Asunder: A History of Divorce in Western Society (New York : Cambridge University Press, 1988), 38.
  10. Jan 5, 1643: First divorce in the colonies,” This Day in History, History.com (http://www.history.com/this-day-in-history : accessed 22 Mar 2012).
  11. Phillips, Putting Asunder: A History of Divorce in Western Society, 38.
  12. Ibid., 40, 142.
  13. For example, Barrere v. Barrere, 4 John. Ch. R. (N.Y. Chancery) 187 (1819).
  14. See Rogers v. Vines, 28 N.C. 293, 297-298 (1846).
  15. See Taylor v. Taylor, 93 N.C. 418, 421 (1885); Carr v. Carr, 63 Va. (22 Gratt.) 168, 176 (1872).
  16. Francis Bazley Lee, New Jersey as a Colony and as a State, Vol. 1 (New York : Publishing Society of New Jersey, 1902), 324-325; digital images, Google Books (http://books.google.com : accessed 22 Mar 2012).
  17. Barrere v. Barrere, 4 John. Ch. R. 187 (1819).
  18. Carr v. Carr, 63 Va. (22 Gratt.) 168, 176 (1872).
  19. See e.g. Virginia State Bar, Divorce in Virginia (http://www.vsb.org/ : accessed 22 Mar 2012) (“Virginia law recognizes two types of divorce: divorce from bed and board (a mensa et thoro) and a divorce from the bond of matrimony (a vinculo matrimonii).”).
  20. See IA Code § 598.17 (“A decree dissolving the marriage may be entered when the court is satisfied from the evidence presented that there has been a breakdown of the marriage relationship to the extent that the legitimate objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved”).
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4 Responses to That other divorce

  1. Susan says:

    My ancestors, being generally poor, managed another type of separation, which I call “divorce by distance.” The husband just up and left, moved two or three counties away, and started another family, usually marrying the other woman (obviously not legal, but no one seems to have objected). The abandoned wife, often left with minor children, moved close to her family and described herself as a “widow” on census and other documents. In at least one case, the wife remarried, and lived less than 200 miles from her first husband and his new family. Since there was never much property or money to quibble over, the legality of all just was never brought up.

    • Judy G. Russell says:

      I suspect I have one of those as well. Either an abandonment or, just as likely, no marriage in the first place.

  2. Betsy Miller says:

    Judy –

    Feel free not to put this comment up on the blog post.

    Footnote 15 probably refers to “courtesy” rights in a wife’s estate. (Gotta love spell checks)

    I’m enjoying your posts!

    Betsy

    • Judy G. Russell says:

      You’re right that it’s misspelled — but it’s not “courtesy” — it’s “curtesy”! From Black’s: “CURTESY. The estate to which by common law a man is entitled, on the death of his wife, in the lands or tenements of which she was seised…”

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