breach or dissolution of the bond of marriage. See Marriage; and Law, No clx. 23.
Divorce is of two kinds: the one, a vinculo matrimoni, which alone is properly divorce; the other, a mensa et thoro, “a separation from bed and board.”
The woman divorced a vinculo matrimoni receives all again that she brought with her: the other has a suitable separate maintenance allowed her out of her husband’s effects. The first only happens thro’ some essential impediment, as confanginity or affinity within the degrees forbidden, Divorce, forbidden, pre-contract, impotency, adultery, &c. of which impediments the canon law allows 14, comprehended in these veres:
\[ \begin{align*} &\text{Error, conditio, volum, cognatio, crimen,} \\ &\text{Cultus, disparitas, vis, ordo, ligamen, longistas,} \\ &\text{Si sis affinis, si forte nequilibis,} \\ &\text{Si parochi duplicis delecta praestitia tegitis,} \\ &\text{Raptave fit mulier, nec pars reddita tuta.} \end{align*} \]
Divorce is a spiritual judgment, and therefore is passed in the spiritual court. Under the old law, the woman divorced was to have of her husband a writing, as St Jerom and Josephus testify, to this effect: I promise, that hereafter I will lay no claim to thee; which was called a bill of divorce.
Divorce was allowed of in great latitude both among the pagans and Jews. At Rome, barrenness, age, disease, madness, and banishment, were the ordinary causes of divorce. Spurius Carvilius, between 500 and 600 years after the building of Rome, under the consulship of M. Attilius, and P. Valerius, was the first who put away his wife because she was barren; though Plutarch, in his Roman Questions, maintains, that Domitian was the first who permitted divorce. Julian afterwards added impotence, a vow of chastity, and the profession of a monastic life, as valid reasons of divorce.
The Roman lawyers distinguish between repudium and divoritum; making the former to be the breaking of a contract or espousal, and the latter separation after matrimony. Romulus enacted a severe law, which suffered not a wife to leave her husband, but gave the man the liberty of turning off his wife, either upon poisoning her children, counterfeiting his private keys, or for the crime of adultery; but if the husband on any other occasion put her away, he ordered one moiety of his estate for the wife, and the other to the gods of Ceres; besides an atonement to the gods of the earth. However, in later times, the women as well as the men might sue a divorce. The common way of divorcing was by sending a bill to the woman, containing the reasons of separation, and the tender of all her goods which she brought with her: and this was called repudium mittens; or else it was performed in her presence, and before seven witnesses, and accompanied with the formalities of tearing the writings, refunding the portion, taking away the keys, and turning the woman out of doors.
The Grecian laws concerning divorces were different: The Cretans allowed divorce to any man that was afraid of having too many children. The Spartans seldom divorced their wives; and it was extremely scandalous for a woman to depart from her husband. The Athenians allowed divorce on very small grounds, by a bill, containing the reason of the divorce, and approved, if the party appealed, by the chief magistrate; and women also were allowed to leave their husbands on just occasions. Persons divorcing their wives were obliged to return their portions; otherwise, the Athenian laws obliged them to pay nine oboli a month for alimony. The terms expressing the separation of men and women from each other were different; the men were said ἀποκατεστήσαντο, to dismiss their wives; but wives, ἀπολύσαντο, to leave their husbands.
"The law of Moses (Mr Paley observes), for rea-
Vol. VI. Part I. Diarctics lions above stated, with others which might be contrived; confine the punishment, so far as it is possible, to the person of the offender; suffering the estate to remain to the heir, or within the family of the ancestor from whom it came, or to attend the appointments of his will.
"Sentences of the ecclesiastical courts, which release the parties a vinculo matrimoni, by reason of impurity, frigidity, consanguinity within the prohibited degrees, prior marriage, or want of the requisite consent of parents or guardians, are not dissolutions of the marriage contract, but judicial declarations that there never was any marriage; such impediment subsisting at the time as rendered the celebration of the marriage rite a mere nullity. And the rite itself contains an exception of these impediments. The man and woman to be married are charged, 'if they know any impediment why they may not be lawfully joined together, to confess it;' and assured, 'that so many as are coupled together, otherwise than God's word doth allow, are not joined together by God; neither is their matrimony lawful;' all which is intended by way of solemn notice to the parties, that the vow they are about to make will bind their consciences and authorise their cohabitation only upon the supposition that no legal impediment exist."