The “missing” law of South Carolina
It’s a one-liner in the report of the United States Census Bureau on marriage and divorce laws and statistics between 1867 and 1906.
“South Carolina,” the entry reads. “All laws permitting divorce were repealed in 1878.”1
Oh boy is that an understatement…
Yep, The Legal Genealogist is poking around in South Carolina laws. Between the draconian laws of slavery in effect in South Carolina that are important for students at this week’s Midwest African American Genealogy Institute in Fort Wayne, Indiana, and the wide range of early laws that are important for all who will attend this weekend’s 46th Annual Summer Workshop of the South Carolina Genealogy Society, there’s just so much to be found.
And sometimes so much that can’t be found.
Because, as the Census Bureau note suggests, you’re sure not going to find divorce laws on the books in South Carolina for a very very long time.
The reality is that divorce was legal in South Carolina for one seven-year period in the 1800s — during the Republican Reconstruction after the Civil War — and not before nor after for a very very long time. As in, not until well into the 20th century: “South Carolina amended the state constitution in 1949 and the legislature passed a law allowing divorce on four grounds: adultery, desertion, physical cruelty, and habitual drunkenness.”2
To be more precise:
Except for the 1868-78 period when the Reconstruction-era constitution provided otherwise, divorces were illegal in South Carolina before 1950… . The 1868 constitution required the enactment of divorce legislation, but this did not happen until January 30, 1872. … The enabling legislation was repealed on December 20, 1878, and the 1895 constitution returned the state to its pre-1872 status.3
That 1895 constitution, by the way, stated simply: “Divorce from the bonds of matrimony shall not be allowed in this state.”4
So the one and only statute passed in South Carolina before the 20th century was that 1872 law and it provided for divorce solely on the grounds of adultery or desertion and, if desertion and the case was brought by the deserting party, only when the desertion was “caused by the extreme cruelty of the other party, or that the desertion by the wife was caused by the gross or wanton and cruel neglect of the husband to provide suitable maintenance for her, he being of sufficient ability so to do.”5
And how many divorces were granted under that act? “Between 1872 and 1878, only 157 divorces were granted in all of South Carolina…” 6
In other words, if your ancestor isn’t one of those very few who snuck in during that brief period when divorce was legal there, don’t bother looking for a divorce record… or a divorce law… in South Carolina, the Palmetto State.
Divorce, Palmetto-style, just wasn’t, at all.
SOURCES
- U.S. Bureau of the Census, Marriage and Divorce, 1867-1906: Part I (Washington, D.C. : Government Printing Office, 1909), 53; digital images, Google Books (https://books.google.com : accessed 9 July 2018). ↩
- Janet Hudson, “From Constitution to Constitution, 1868–1895: South Carolina’s Unique Stance on Divorce,” South Carolina Historical Magazine 98 (January 1997): 75–96, reprinted at South Carolina Encyclopedia, “Divorce” (http://www.scencyclopedia.org/ : accessed 9 July 2018). ↩
- LaBrenda Garrett-Nelson, A Guide to Researching African American Ancestors in Laurens County, South Carolina and Selected Finding Aids (Bloomington, IN : Xlibris, 2016), 7. ↩
- §3, Article XVII, Constitution of 1895 (Abbeville SC : Hugh Wilson, 1900), 50; digital images, Carolana.com (http://www.carolana.com/ : accessed 9 July 2018). ↩
- §2, An Act to Regulate the Granting of Divorces, Acts and Joint Resolutions of the General Assembly of the State of South Carolina, … 1871-72 (Columbia, SC : Republican Printing Co., State Printers, 1872), 30; digital images, Google Books (https://books.google.com : accessed 9 July 2018). ↩
- Garrett-Nelson, A Guide to Researching African American Ancestors in Laurens County, South Carolina and Selected Finding Aids, 7. See also Hudson, “From Constitution to Constitution, 1868–1895: South Carolina’s Unique Stance on Divorce,” which supports the 157 number. ↩
The “people’s law” recognized divorce long before the SC legal system did. They were called “suitcase divorces”, and can obviously be tricky to find in researching your SC ancestors, but with the combination of luck and persistence (required for all family history research), you can find some of them. I have two well documented “suitcase divorces” in my ancestor tree, with no doubt more to find.
I have no doubt that individuals found their way around a law they considered unreasonable, in many ways!
I did research several years ago on how many SC divorces were granted during the Reconstruction window and I came up with the following:
1869 5
1870 1
1871 0
1872 7
1873 16
1874 17
1875 35
1876 17
1877 26
1878 39
1879 0