a breach or dissolution of the bond of marriage. See MARRIAGE, and LAW Index.

Divorce is of two kinds: the one à vinculo matrimonii, which alone is properly divorce; the other, à mensa et thoro, "a separation from bed and board."

The woman divorced à vinculo matrimonii 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 through some essential impediment, as consanguinity or affinity within the degrees forbidden, pre-contract, impotency, adultery, &c. of which impediments the canon law allows 14, comprehended in these verses:

Error, conditio, vatum, cognatio, crimen, Cultus, disparitas, vis, ordo, ligamen, honestas, Si fes affinis, si forte coire negubis, Si parochi et duplicis deit praesentia testitis, Raptave sit mulier, nec parti reddita tuta.

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 Jerome 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. Justinian 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 divortium; 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 goddess 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 Divorce. she brought with her: and this was called repudium mittere; 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 αποτριχισθαι or απολυθαι, to dismiss their wives; but wives, απολυθαι, to leave their husbands.

"The law of Moses (Mr Paley observes), for rational and political reasons of local expediency, permitted the Jewish husband to put away his wife; but whether for every cause, or for what cause, appears to have been controverted amongst the interpreters of those times. Christ, the precepts of whose religion were calculated for more general use and observation, revokes this permission, as given to the Jews 'for their hardnels of heart,' and promulgates a law which was thenceforward to confine divorces to the single cause of adultery in the wife: 'Whosoever shall put away his wife, except it be for fornication, and shall marry another, committeth adultery; and who so marrieth her which is put away, doth commit adultery,' Mat. xix. 9.

"Inferior causes may justify the separation of husband and wife, although they will not authorize such a dissolution of the marriage contract as would leave either at liberty to marry again: for it is that liberty in which the danger and mischief of divorces generally consist. The law of this country, in conformity to our Saviour's injunction, confines the dissolution of the marriage contract to the single case of adultery in the wife; and a divorce even in that case can only be brought about by the operation of an act of parliament, founded upon a previous sentence in the spiritual court, and a verdict against the adulterer at common law: which proceedings taken together compose as complete an investigation of the complaint as a cause can receive. It has lately been proposed to the legislature to annex a clause to these acts, restraining the offending party from marrying with the companion of her crime, who by the course of proceeding is always known and convicted; for there is reason to fear, that adulterous connections are often formed with the prospect of bringing them to this conclusion; at least, when the seducer has once captivated the affection of a married woman, he may avail himself of this tempting argument to subdue her scruples, and complete his victory; and the legislature, as the business is managed at present, affords by its interposition the criminal design of the offenders, and confers a privilege where it ought to inflict a punishment. The proposal deserved an experiment; but something more penal, it is apprehended, will be found necessary to check the progress of this alarming depravity. Whether a law might not be framed, directing the fortune of the adultrers to defend as in case of her natural death; reverting, however, a certain proportion of the produce of it, by way of annuity, for her subsistence (such annuity in no case to exceed a certain sum); and also so far suspending the estate in the hands of the heir, as to preserve the inheritance to any children she might bear to a second marriage, in case there was none to succeed in the place of their mother by the first: whether such a law would not render female virtue in higher life less wincible, as well as the feeders of that virtue less urgent in their suit, I would recommend to the deliberation of those who are willing to attempt the reformation of this important but most incorrigible class of the community. A passion for splendour, for expensive amusements and distinctions, is commonly found in that description of women who would become the subjects of such a law, not less inordinate than their other appetites. A severity of the kind proposed applies immediately to that passion. And there is no room for any complaint of injustice, since the provisions 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 à vinculo matrimonii, by reason of impurity, frigidity, consanguinity within the prohibited degrees, prior marriage, or want of the requisite consent of parents or guardians, are not disolutions 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 affirmed, '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 authorize their cohabitation only upon the supposition that no legal impediment exist."