Vanderbilt Law Review

Article Title

Divorce -- A Suggested Approach with Particular Reference to Dissolution for Living Separate and Apart


Much of the present English and American law governing the dissolution of the marriage status is derived from the English canon law and ecclesiastical court practice' applicable to suspension of marital cohabitation, without regard to the distinction between cohabitation and status, and without recognition that the distinction may involve basic differences that might require different policies and principles.

Dissolution of a valid marriage by divorce for wholly post-nuptial cause is of relatively modern origin in England and the United States. The term divorce was, however, in early use, but, throughout the Middle Ages and until well into the 17th century, with a different meaning. Divorce a vinculo matrimonii, which has come in modern usage to refer to dissolution for post-nuptial cause, referred rather to the setting aside by an ecclesiastical court of a marriage for an imperfection existing at the time of its inception which made it canonically inchoate. Divorce a "mensa et thoro" in modern usage variously referred to as judicial separation, divorce or separation from bed and board, or limited divorce--dealt with post-nuptial cause affecting cohabitation only: adultery (regarded as the most serious breach of marital duty or wrong), and cruelty (which made continued living together dangerous to the life or health of one of the parties). Although its immediate result was a judicial suspension of cohabitation, in spite of the respondent's desires otherwise, the purpose of such divorce was punitive (adultery) or preventive (cruelty). Judicial suspension of cohabitation for desertion alone (cessation already being an accomplished fact) would have been anomalous. Absent adultery or cruelty, desertion presented the reverse problem of coercing the parties to live together through the bill for restitution of conjugal rights. Because of the doctrine of indissolubility of marriage, a dissolution divorce for any post-nuptial reason was impossible.