MARRIAGE AND DIVORCE. BY SIMEON E. BALDWIN, LL.D. MARRIAGE. Definition of Marriage-Scope of this Article.-Marriage is a contract between persons of a different sex for cohabitation as man and wife, during their joint lives, whereby a new social relation is created between them, and a new legal status acquired by the woman. It is an institution of society in which the whole community have an interest, and which is everywhere regulated to some extent by positive law. It is the object of this article to treat of marriage and its dissolution solely with reference to such points as may be of common interest both to the physician and the lawyer. Statutory Regulation. Each of the United States has its own law upon this subject, as to marriages contracted within its jurisdiction, or with a view to future residence there, though contracted elsewhere. The United States, as such, have no law as to marriage which is operative within any State. Congress has made regulations with reference to those celebrated in the District of Columbia, in the several Territories of the United States, and abroad. Those of the latter class can be entered into between any persons who would be competent to marry if residing in the District of Columbia, before any Consular officer of the United States in any foreign country. By an act of Congress passed in 1887, marriage is prohibited in any of the Territories between persons related within and not including the fourth degree of consanguinity, computed according to the rules of the civil law (of the old Roman Empire). Bigamy and polygamy are also prohibited in the Territories. Age of Consent.-The age which must have been attained by the parties to a marriage is in most of the older States (following both the civil and the common law) fourteen for males and twelve for females. In the Middle and many of the Western States it is higher; often eighteen for males and fourteen for females; in some cases sixteen for females.* Marriages of those under the prescribed age can be disaffirmed by either as soon as it is reached, or annulled by the courts prior to that time. It is of no importance whether the parties were or were not, when * Vide Indecent Assault Upon Children, vol. i., and Rape, vol. ii. married, physically capable of sexual intercourse. If they or either of them were not of the legal age for consent the marriage can be set aside. Capacity to Consent-Insanity. The parties to the marriage contract must not only be of sufficient age, but of sufficient mental capacity, in fact, to understand the general nature and consequences of the act. Insanity or idiocy at the time of marriage is always and everywhere a legal impediment. Supervenient insanity was not a cause of divorce at common law, nor is it one under the statutes of most of our States. It is occasionally made the ground of a special act of divorce, granted by the legislature; but such a power is not vested in the legislatures of all the States. It does generally belong to the Territorial legislatures, under the laws of the United States. Monomania or delusions, which do not disqualify a person for entering into the general transactions of life, and managing his affairs with ordinary prudence and skill, and do not affect his understanding of the marriage contract, or his ability to perform its obligations, will not defeat its validity. Seated insanity defeats a marriage with the insane person, although it was celebrated during a lucid interval. On the other hand, a sane person may avoid a marriage contracted during temporary insanity, even if produced by drunkenness. A marriage contracted while insane may be confirmed by the party whose mind was so affected, should he regain his reason, and such confirmation may be established by continued cohabitation. In such a case no new celebration of the marriage is necessary. The original marriage will be treated as voidable, not void.* Capacity to Consummate the Marriage.-Although the parties have reached the proper age and are of sufficient mental capacity, they cannot marry unless physically capable of sexual intercourse. This does not mean that the man must be able to beget children and the woman to conceive and bear them. It is enough if the physical condition of each at the time of marriage is such as to fulfill the conditions of copulation, though not of procreation. This much each party may insist upon, as essential to the validity of the marriage, notwithstanding the woman was, at the time of its celebration, beyond the age of child-bearing. The right, however, is one which may be waived, and is waived when marriage is knowingly contracted with an impotent person, or one of so advanced an age that impotence might naturally be expected to exist. Impotence, as above explained, while a cause of divorce in all our States, does not in most of them render the marriage absolutely void from the beginning. If it is due to a temporary cause, and is curable, it is no legal impediment to the marriage, unless after marriage the party refuses to submit, within a reasonable time, to the proper treatment for its removal. A refusal on the part of either to participate in sexual intercourse, within a reasonable time after marriage, if unexplained, raises a presumption of incapacity. If, while sexual intercourse is not physically impossible, it is practically so, because possible only under conditions to which the other party * Cole vs. Cole, 5 Sneed's Tenn. Rep. 57; 70 Am. Dec. 275. + Schouler on Husband and Wife, § 23; J. G. vs. H. G., 33 Ind. Rep. 401. ought not to be expected to submit, the case would be one of legal impotence, furnishing a sufficient ground for divorce. Impotence is, in some States, made a cause of divorce on the ground of a fraud in inducing the petitioner to contract the marriage. It is generally rested, however, on the foundation.of the want of capacity to conclude the contract; nor is the ignorance of the impotent party that impotence exists anywhere received as a defense. If, however, impotence exists, and is known to the party disabled by it, it may be an actual fraud in such party to contract marriage without disclosing the fact to the other party. Thus, if a woman, while of an age for child-bearing, should be rendered barren by submitting to the operation of ovariotomy, it would be a fraud on her part not to disclose the results of the operation to the intended husband. Disqualifications from Relationship.-Blood relationship generally disqualifies those within the third degree, inclusive, computed according to the civil law; that is, those nearer to each other than first cousins, whether by the whole blood or half blood, by legitimate or illegitimate connection. Some States also prohibit marriages between those connected by affinity, within certain degrees. Effect of Disqualifications.—By the common law, canonical disabilities rendered a marriage voidable only; civil disabilities might render it void.* In the several States of the United States it is generally held that marriages by persons under any disability are simply voidable, and that the proper mode of avoiding them is by an application for a divorce. In some, however, the common law rule is still recognized.t Paternity of Children.-A child born in wedlock is legally presumed to be legitimate. This presumption is not overcome by proof of adultery on the part of the wife at about the time of conception, unless it is also proved that the husband had no opportunities of intercourse with her at or about the same time. Such proof must be so strong as to put it beyond all reasonable doubt that the husband could not have been the father. That the child must have been begotten before the marriage does not affect the question of its legitimacy. DIVORCE. Divorce Procedure.-Divorces are of two kinds, a vinculo matrimonii, or from the bond of matrimony, and a mensa et thoro, or from bed and board. In some States both these kinds of divorce are granted; in others, only the former. A separation is also not infrequently accomplished by mutual consent, upon terms and settlements arranged through the medium of trustees for the wife. Divorces in the United States generally are granted only under conditions and for causes determined by the statute law of the State or Territory where one or both of the parties are domiciled. Some States, however, have entertained equitable proceedings to declare a marriage * 2 Kent's Commentaries, 95. ↑ Harrison vs. The State, 22 Maryland Rep. 468; 85 Am. Dec. 658; Browne's Digest of Divorce Laws, 57. ‡ Phillips vs. Allen, 2 Allen's Rep. 454. null because the parties were not of sufficient capacity to contract, or for fraud in procuring it. Legislative divorces, by a special statute passed to meet the particular case, are also granted by some States in exceptional instances, for other than the ordinary statutory causes.* The United States have no laws regulating divorces, except as to persons belonging to the District of Columbia. In some States provision is made by law for the intervention of a public prosecuting officer to make defense in uncontested divorce suits, when he thinks such a course demanded by the public interests. Causes of Divorce Antecedent to the Marriage.-Want of sufficient age, or of mental or physical capacity, or relationship within the prohibited degrees, are causes of divorce antecedent to the marriage. So also is fraud in procuring the contract. The term "fraudulent contract" is sometimes used to denote only marriages where one of the parties is impotent, thus defrauding the other of one of the expected advantages of the union; or where both are so related as to make the contract one in fraud of the law.t But while these are cases of constructive fraud, there may also be those of actual fraud. To constitute a cause of divorce for actual fraud, the fraud must be plain and the proof clear. Fraud is never presumed. An unchaste woman commits no legal fraud in marrying a man who is ignorant of her character. If, however, she marries when actually pregnant by another man, and the husband was ignorant of her condition and believed her chaste, he can claim a divorce on the ground of her fraud. It is otherwise if he knew that she was unchaste, though he did not know that she was with child.§ Should she, however, while in this condition, under false representations of her chastity induce him to engage to marry her, and then entice him into sexual intercourse before and in contemplation of the marriage and for the very purpose of precluding him from afterward claiming a divorce, because he would then have married her knowing by his own act that she was unchaste, such active fraud on her part, coupled with her pregnancy, would be sufficient to give him a divorce.|| Divorces on the Ground of Impotence.-On an application for a divorce on the ground of impotence, the court may require the defendant to submit to a surgical examination, unless this has been done before the institution of the action, and the result can be shown by proper testimony. A certificate by the examining physician is not receivable in lieu of his appearance as a witness.¶ Long and unexplained delay on the part of the petitioner in seeking a divorce will bar the remedy. Ignorance of the existence of the defect will not excuse the delay, if there was the means of knowledge, and a want of reasonable diligence in seeking to obtain it.** 365. *Maynard vs. Hill, 125 U. S. Rep. 190; Starr vs. Pease, 8 Conn. Rep. 541. + Benton vs. Benton, 1 Day's Rep. 114. Scott vs. Shufelt, 5 Paige's Rep. 43. § Crehore vs. Crehore, 97 Mass. Rep. 330. || Seilheimer vs. Seilheimer, 40 N. J. Eq. Rep. 412; 2 Atl. Rep. 376. ¶ Devenbagh vs. Devenbagh, 5 Paige's Chan. Rep. 554; LeBarron vs. Le Barron, 35 Vt. ** Newell vs. Newell, 9 Paige's Chan. Rep. 25; BEq. Rep. 95. ―n vs. B- -n, 28 Eng. Law and It is not necessary to prove impotence generally, and as to all women. It is enough to establish its existence so far as the intercourse with the petitioner is concerned. A failure to consummate the marriage after three years of cohabitation is presumptive evidence of impotence." Causes of Divorce Arising after the Marriage-Insanity-Cruelty. -We have already seen that loss of physical power, occurring after the marriage, is no ground for a divorce. The same is true in most States as to loss of reason, even if a permanent affection, though this is sometimes, in such jurisdictions, made the subject of a divorce by a special act of the legislature.f It is not a cause of divorce on the ground of "intolerable cruelty" that a husband insists on sexual intercourse against the wishes and remonstrances of the wife, although, in consequence of her physical condition, this is indelicate, improper, unreasonable, and injurious to her health, unless he knew that her condition and health were such as to make the act unreasonable. If he had such knowledge, his acts would violate his marital obligations. There is a duty of forbearance on the part of the husband at the reasonable request of the wife, as well as a duty of submission on her part at his reasonable request.§ The willful communication of venereal disease by one party to the other may amount to such an act of cruelty as to justify a divorce; and knowledge of the existence of the disease on the part of the party affected may be inferred from the mere fact of its existence. It is not "cruel and abusive treatment" within the meaning of divorce statutes for a wife to refuse for years, without cause, to have any sexual intercourse with her husband. The old law of England gave a remedy in such a case, by a suit for the "restitution of conjugal rights," resulting in the punishment of the offending party by imprisonment for contempt of court, should the refusal be continued after a judgment in favor of the petitioner; but this proceeding was founded on principles of ecclesiastical law, applicable to courts having in view the preservation of the morals of the parties before them, and acting pro salute animæ. Divorces for Ill-treatment Injuring Health or Endangering Reason. In some States divorces are granted for acts which, though not amounting to extreme cruelty in the legal sense, yet are such as seriously to injure the health or endanger the reason of the other party. In applying such laws the temperament of the sufferer is to be regarded. The health or reason of a feeble or neurotic person might be endangered by such a slight degree of ill-treatment as would have little or no effect on a healthier subject. Divorce is not intended as a punishment of the offender, but as a relief to the party against whom the offense is committed.¶ If a man compels his wife to submit to sexual intercourse so frequently as to impair her health, it will be a sufficient ground of divorce, under a law of this character.** * Anonymous, 22 Eng. Law and Eq. Rep. 637. + See Cooley's edition of Blackstone's Commentaries, vol. i., p. 441, note 23. Shaw vs. Shaw, 17 Conn. Rep. 189. § Mayhew vs. Mayhew, 61 Conn. Rep. 235. Cowles vs. Cowles, 112 Mass. Rep. 298. ¶ Robinson vs. Robinson, (New Hampshire) 23 Atl. Rep. 362. ** Melvin vs. Melvin, 58 N. H. Rep. 569; Grant vs. Grant, (Minnesota) 54 Northwest. Rep. 1059. |