Duhaime's Law Dictionary


Divorce Definition:

The final, legal ending of a marriage, by Court order.

Related Terms: Marriage, Divorce a Mensa et Thoro, Adultery, Idda, Khula, Physical Cruelty, Mental Cruelty, Decree Nisi, Decree Absolute, A Vinculo Matrimonii, Matrimony

Marriage, once entered into, ends only by death of one of the spouses or an annulment, or by the Government ending it, which power has been given to the Courts, the exercise of which is called a divorce.

As Mozley and Whitley have it, in their 1967 law book:

"Divorce (is) the termination of a marriage otherwise than by death or annulment."

Marriage is based on contract but contrary to other contract relationships, it cannot be broken merely by the consent of the parties.

divorce

As Justice Gray of the United States Supreme Court wrote in Atherton:

"The purpose and effect of a decree of divorce from the bond of matrimony, by a court of competent jurisdiction, are to change the existing status or domestic relation of husband and wife, and to free them both from the bond. The marriage tie, when thus severed as to one party, ceases to bind either.

"A husband without a wife, or a wife without a husband, is unknown to the law."

The term divorce used to encompass most judicial processes which ended a marriage such as marriage annulment, or an order which suspended it (called divorce a mensa et thoro).

The Churches, up to 1857 in common law England, had the authority to annul a marriage or suspend its obligations as in divorce a mensa et thoro, but not to dissolve a marriage, something which could only be obtained through Parliament.

In 1857, England wheeled out a Matrimonial Causes Act, giving divorce jurisdiction to the judiciary: the Courts; such a serious matter that at first, the law required that the application be heard and determined by three judges.

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