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American Journal of Legal History

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marriage, annulment, divorce, marital dissolution


Civil Law | Common Law | Family Law | Law


It is hardly surprising that certain legal institutions--adoption, wills, and guardianship--have lasted through the centuries. Each meets a different, seemingly timeless need: providing parenting for orphans or abandoned children, distributing property at death, and dealing with legal incapacity, respectively. Similarly, divorce, though it appeared somewhat later, took hold and persisted for an obvious reason-the increasing demand for a legally sanctioned way to terminate broken marriages. The endurance of annulment, however, particularly in the face of increasingly liberalized divorce laws, defies easy explanation. The existence of annulment prior to the mid-nineteenth century is easily explained. Until 1857, England was a "divorceless society." Accordingly, the only way an unhappy spouse could escape marriage was by seeking an annulment-a declaration that the marriage had never validly existed-from an ecclesiastical court operated by the Catholic Church. According to one family law scholar, "annulments [in those times] performed what we would think of as the function of divorces." This explanation, though plausible in that context, fails to account for the continued vitality of annulment in late nineteenth and early twentieth-century America, a time when liberal divorce laws had been on the books in most states for more than a century and the divorce rate had long been on the rise. This article provides the first systematic exploration of the practice of annulment during this period.7 Based on original annulment records, this article presents data showing who sought annulment, the grounds they alleged, as well as what happened in annulment cases in-and out-of court. Beyond drawing a picture of the practice of annulment, this article offers insight into why annulment did not-and indeed, still has not-become obsolete, despite increasingly liberal divorce laws.



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