Augustus John Cuthbert Hare.

The Central law journal, Volume 28 online

. (page 134 of 151)
Online LibraryAugustus John Cuthbert HareThe Central law journal, Volume 28 → online text (page 134 of 151)
Font size
QR-code for this ebook

leged to have been seduced was in the habit of seeking
opportunities for criminal indulgence, not only with
the defendant, but with various other persons, about
the time of such alleged seduction f In other words,
can a woman who engages in criminal indulgence with
her male acquaintances, as opportunities present
themselves, and who will make opportunities for that
purpose, be said to be seduced, within the true intent
and meaning of the statute? Unless these questions
can be answered in the affirmative, it is not perceived
that she was "seduced." To hold otherwise would
be to break down all distinctions between the virtuous
and vicious, and to plaoe the common bawd on the
same plane with the virtuous woman, whose life was
pure and whose confidence had been betrayed by the
heartless Ubertlne.

Digitized by




No. 23


Although marriage is commonly only
spoken of as a contract and by our statutes
declared to be a ''civil contract," it has feat-
ures antagonistic to our ideas of an ordinary
contract. ''It is more than a contract, is
indissolaable by the parties, subsists though
one of them becomes incapable by act of
God, it is of greater moment to the State than
to them, it is the parent and not the child of
society." ^

While the term contract may be correct,
while it remains executory, as soon as the
marriage relation is established by the pre-
scribed ceremony it becomes a status, clothing
the parties with relations, entirely new as to
each other and the world. It is this new re-
lationship with all its accompanying rights
and obligations which we call the status and
which death or divorce can alone destroy.

This modern view of the marriage relation,
as contradistinguished from the contract idea
as in large measure still held in foreign coun-
tries and as held in New York until the case
of Einnier v. Einnier, 45 N. Y. 535, decided
in 1871 — ^has had a decided influence upon
the subject of divorce and especially of for-
eign divorce.

It is a generally conceded principle of law
in the United Statets that marriage is con-
trolled by the lex loci contractus, and that this
is true whatever may be the actual domicile
of the parties at the time. In other words,
whatever may have been the requirements of
the laws of the domicile of the contracting
parties as to age, capacity, consent, etc., if
the requirements of the laws of the State
where the marriage was celebrated were com-
plied with, the marriage itself will be valid
in the State of domicile.

It has accordingly been held that parties,
domiciled in New York might go to New
Jersey there marry and return to New York,
and the marriage be held valid. Adjudica-
tions of this kind in most of the States have
given rise to the principle that "a marriage
valid where made is valid everywhere," ex-
cept, of course, it be incestuous, polygamous
or against public morals. The converse of
this seems to follow necessarily viz., a mar-
riage void where made is void everywhere,
barring mere informalities or irregularities.

126 Alb. L.J. 448.

It is also well established that while the
contracting parties may retain the benefits of
the inviolability of the status upon removing
to a foreign jurisdiction, the s^a^t/s undergoes
a change, inasmuch as the statutory require-
ments which characterize the status in one
State cannot be transferred to another State,
even upon a bona fide change of domicile to
the latter. For upon such a change the status
of the new domicile upon removal, ipso facto^
attaches and that of the old is lost ; were this
not so, there would arise an endless confusion
of conflicting marital rights and obligations,
wholly inconsistent with public policy and
the comity of States.

With this preface as to the status of mar-
riage, it will now be proper to consider in
what manner and to what extent the decree
of a foreign court can dissolve it ; the tribu-
nals of the different States being considered
in this connection foreign to one another.

The plan to be followed necessitates the
treatment of the following points :

1. A consideration of the requisites for
giving the court jurisdiction in both domestic
and foreign divorces.

2. The form and nature of the action, in-
cluding notice by publication.

3. The effect of a foreign judgment of
divorce upon the status of parties, plaintiff
and defendant.

4. The validity of the judgment in other

And first as to the requisites. As legisla-
tive divorces have been generally abolished,
original jurisdiction has been given to the
circuit courts. Before such courts, therefore,
it is necessary to bring the application for
divorce in the first instance, and to render its
decree valid it must have jurisdiction of the
subject-matter and the parties. This subject-
matter of the suit in an action for divorce
must not be confused with the grounds upon
which it is to be granted, for while the former
must be within the court's jurisdiction, the
latter may have arisen or the offenses have
been committed in any jurisdiction. Under
this principle a Wisconsin court can render a
valid decree of divorce for causes occuring
wholly in England or Illinois.^

After the same nature is the doctrine that,
"the domicile of the parties at time of the of-
fense committed is of no consequence, the

2 2 Bishop M. & D., § 171.

Digitized by vnOOQlC

Vol. 28.



jurisdiction depending on their domicile when
the proceeding is instituted and the judgment
is rendered," and this obtains in all States ex-
cept Pennsylvania, New Hampshire, and

Nor is it material to the question of juris-
diction in what country or under what system
of divorce laws the marriage was celebrated,
the lex fori governing the court. This, how-
ever, is only the American rule, the English
rule asserting the incapacity of any foreign
court to dissolve an English marriage. But
the tendency is to a more liberal view at

As in other actions the domicile of the par-
ties within the jurisdiction is a prime requis-
ite, 80 is it in actions for divorce, but with
this marked qualification that the domicile of
the moving party is alone required, both need
not be within the jurisdiction, and this power
of the court where the applicant resides is
not dependent upon the residence of the de-
fendant in the same State or jurisdiction,
but exists even though the defendant never
resided in the State.

The nature of such a domicile as is required
to give jurisdiction needs explanation.

It is generally conceded that the husband
has the right, without the consent of the wife,
to establish his domicile anywhere, and it is
the legal duty of the wife to follow, non-com-
pliance on her part amounting to desertion,
and this is true even though both be living
separate under articles of separation or by
mutual consent.^

This domicile of the husband for the pur-
pose of giving jurisdiction must be honafide^
be cannot leave the matrimonial domicile, for
instance, go to another State, with no inten-
tion of becoming a citizen, but for the pur-
pose of obtaining an ex parte divorce, for
this would, when shown, be a fraud upon the
court, rendering its decree void db initio.

If such decrees were allowed to stand,
marriage would become a farce, subject to
the caprice of either of the parties.

But the wife may, under certain circum-
stances, acquire a separate domicile for the
purposes of a divorce.* This^ right on her
part is one founded in justice and common
sense, for, were this not so, it is easy to con-

8 2 Bishop M. & D., (§ 178, 179.
* Harvey v. Parnle. 8 L. R. App. Ca?. 48.
« TVanrender v. Warrender, 2 C. & F. 488.
« Craven v. Craven, 27 Wis. 418.

ceive of a worthless and cruel husband, by
willfully changing his domicile, depriving his
wife of all remedy by way of a divorce.

That a husband can commit adultery in
Wisconsin and flee to Illinois and thereby
deprive his wife of her right of action, on the
theory that her domicile, following that of
her husband, was in Illinois and that there-
fore she could not sue in a Wisconsin courts
is to allow reverence for a dogma to over-
power our sense of justice. It was long be-
fore this enlightened doctrine obtained in the
United States and received its first recognition
in the Supreme Court of the United States, in
the case of Cheever v. Wilson, 9 Wall. 108,
and was not fully accepted in the courts of
New York until the case of Hunt v. Hunt,^
decided in 1878.

The circumstances under which the wife
can thus secure her separate domicile must
be such that she is not the spouse guilty of
the matrimonial wrong; or, as stated by
Bishop : **A wife cannot obtain an independ-
ent domicile by her own wrong. Hence, in
proceedings against her for divorce, though
she may have separated from her husband,
and he living in a different State, her domicile
is presumed to be the same as his." ^ But it
is evident that were the husband the wronging
party, a contrary rule must prevail. **The
wife's legal duty is to follow her husband's
domicile ceases only in consequence of con-
duct of the husband, of such a nature, as
owing to it the law would by divorce absolve
her from the duty."

As was well said in the leading case of
Harding v. Alden:* * 'Unless the wife could
acquire a separate domicile for the sake of
getting a divorce, it would require that the
wife, abandoned and dishonored, should seek
the new domicile of the guilty husband, aniTtio
manendi^ before she could claim the benefit
of the law to be relieved from his control."

II. The form and Nature of the Action^ In-
cluding Notice by Publication. — Under the
contract idea of the marriage relation, the
action for divorce partook of all the incidents
of any action for the breach of contract, and
as divorce was the remedy for such a breach,
the action was considered as one purely in
personam, t. 6., the action instead of being

7 72 N. Y. 217, 242.

8 2Bi8hopM. &D.,§126.

9 9Greenl. (Me.) 151.

Digitized by




No. 23

directed against the relation was directed
againt the person, and it therefore followed
as a natural consequence that no action could
be maintained unless the party defendant
were in court, on the maxim that every person
should have his day in court, in order to be
bound. So long as this view of the action
obtained in the courts, it is evident that the
propositions above advanced, concerning the
presence of but one party, could not be
maintained. Latterly, however, since the
acceptance of the idea that marriage is a
8tatM8^ an action for divorce, so far as the
main question is concerned, viz., the termina-
tion of the relation of husband and wife, is
now considered by the leading courts as an
action wholly in rem. Such an action as the
term indicates is no longer directed against
the person, but against his status , the status
being the res under adjudication.

It is a principle of interstate law, that each
State has the right to judge of the status of
its own citizens, and that no State can exer-
cise any direct jurisdiction outside of its own
borders. But when an applicant for a di-
vorce comes into court, he brings his status
with him, and thus gives the court jurisdiction
of the subject-matter, which jurisdiction
could in nowise be strengthened by the
presence of the defendant, so far as the sub-
ject-matter is concerned.

''As in other actions in rem the inanimate
object must be secured as being the only way
to get jurisdiction over it, so in divorce the
judgment does not act on the material man,
but upon his immaterial status^ and to reach
this the man himself must be within reach,
for only through him can the status be oper-
ated upon, and by submitting to the proceed-
ings as plaintiff, it is his own status which is
to be operated upon by the judgment, "^^ and
so far as the applicant is concerned, there
being no fraud, the marriage relation is at an
end, and he or she is at liberty to re-marry,
whatever effect may be given to such decree
by the laws and courts of the domicile of the
defendant spouse.

The necessity for considering an action for
divorce as one in rem instead of one in per-
sonam^ is readily seen by considering the
requirements of the latter. In such an ac-
tion, to sustain the jurisdiction there must be
personal service. If, therefore, the husband

10 26 Alb. L. J. 448 et seq.

changed his domicile and his wife remained
behind, she could not bring such an action
for divorce : 1st. Because, constructive pro-
cess by her State would be of no avail as
against him, he not being a citizen and the
process being confined to her own State. 2d.
Because of the maxim that the husband's
domicile controls that of the wife. The wife,
therefore, would be left without a remedy.
But this change in the form of the action into
one in rem, together with the power of ac-
quiring a separate domicile in some cases for
the purposes of divorce, have removed these
hardships and placed her on a more even
footing with man.

The action of divorce being therefore in
rem, no actual notice to the defendant is
necessary, mere constructive notice being
held sufficient."

By constructive notice is generally meant
notice given by publication or posting within
the jurisdiction of the court for a prescribed
period of time. Such notice, however, is
only allowed when, on affidavit, it is shown
by the moving party that it is the best possi-
ble, owing to his ignorance of the whereabouts
of the defendant at the time of trial. Upon
such affidavit the court issues an order for
publication, and if the defendant does not
answer personally or by attorney, within the
time prescribed by statute, judgment will be
rendered for the plaintiff in view of all the
facts, and such judgment, unless impeached
for fraud, will be held valid as between the
parties and as against all the world. The
subject of constructive notice was fully ex-
amined in the leading case of Ditson v. Dit-
son,^2 Ames, C. J., rendering the decision.
We quote freely : "Jurisdiction over the pe-
titioning party alone, as a citizen of a State,
is sufficient by the general law to give juris-
diction to the courts of the State to divorce
such party, upon such notice, personal or
constructive, to the other party to the mar-
riage sought to be affected or dissolved,
whether such party be present in or absent
from the State, as is possible or customary
under the circumstances." Page 103. *'To
say that the general law inexorably demands
personal notice in order to such action, or
still more demands that all parties interested
in a relation or in property subject to a juris-

11 Cooper V. Cooper, 7 Ohio, 288.
w 4 R. I. 87.

Digitized by


Vol. 28.



diction should be physically within that jur-
isdiction, is to lay down a rule of law inca-
pable of execution, or to make the execution
of laws dependent, not upon the claims of
justice, but upon the chance locality, or what
is wor&e upon the will of those most interested
to defeat it."

That such constructive notice by publica-
tion is sufiScient to sustain an action for di-
vorce has been held by a. majority of the

New York, however, until recently, and
then only qualifiedly, admitting the practice,
but we can see no reason for it savf^ the uni-
form adherence of her courts, until 1878 to
the older doctrine that marriage is a contract,
and that a woman could not have a separate
domicile for purposes of divorce. In actions
in the admiralty courts, in prize causes and
in the State courts in garnishment, attach-
ment, etc., it is well settled that constructive
notice is deemed sufficient ; in fact without
resource to such notice there would often be
a total failure of justice. If such construc-
tive notice can suffice to dispose of the most
sacred rights of property, when defendant
has no notice, we see no reason why it should
not have equal force and application to ac-
tions for divorce. Quoting again from Ditson
V. Ditson.^ It is a very narrow view of the
general law ; it is to form a very low estimate
of the wisdom which directs its administra-
tion, to suppose that when it can do justice
to those within its jurisdiction, and entitled
to its aid only by dispensing with personal
notice to those out of it, and substituting in-
stead what is possible for notice to them, it
is powerless to do this, and so powerless to
help its own citizens or strangers within its
gates, however strong may be their claims
or their necessities. Such a sacrifice of sub-
stance to shadows ; of the purposes, to the
forms of justice might mark the ordinances
of a petty municipality, but could hardly be
supposed to characterize the system of gen-
eral law.^*

When it is further considered that citation
by personal service is no better for founding
jurisdiction than service by publication, since
no tribunal can send its process into a foreign
jurisdiction, there remain no valid reasons
for not allowing to a divorce granted in ac-

w Supra.

1* Ditson v. Ditson, 4 R. I. 87, p. 101.

cordance with the laws of the State and on
service, of notice by publication, the same
force and effect as to one granted where both
parties have submitted to the jurisdiction of
the courl.

III. The Effect of an Ex parte Divorce upon
the Statfis of the Parties, Plaintiff and De-
fendant. — It has already been indicated that
the moving party by submitting his status to
a decree of the court, becomes absolved from
the marital relation and is free to re-marry
in the State rendering the decree, and it is
perhaps generally conceded that such spouse
might re-marry in any other State acknowl-
edging the validity of the decree. While
both parties remain in the same State they
have a common status, subject to the same
laws, and hence a decree of divorce becomes
absolute, when both submit ; but if one re-
moves to another State ''his or her status as
affected by the marital relation may be ad-
judged upon and confirmed or changed in
accordance with the laws of that State." In
other words their status has become separable
and as each State can adjudicate upon the
status of its own citizens without hindrance
from any other, it would seem to follow that
a divorce by one of the spouses would not
preclude an action for a decree by the other.
Some States as Maine and Michigan, have
statutes to this effect. ^^ But these proposi-
tions if carried out lead to seeming anomalies.
Thus, the husband obtains from his wife, who
remains in New York a valid ex parte divorce
in Indiana. But as New York does not rec-
ognize such divorces, the husband in Indiana
and all other States save New York will be
considered as having been freed and as no
longer having a wife, whereas the wife not
having had personal notice nor having sub-
mitted to the jurisdiction of the Indiana court
is unaffected by its decree, and is hence still
a married woman, but without a husband.
And so far has this doctrine been pushed in
New York that a husband against whom a
wife had obtained an ex parte divorce in Ohio
was held guilty of bigamy for re-marrying in
New York during the life- time of his first

Thus far we have been going on the pre-
sumption that the divorce was simply for

u Wright V. Wright, 24 Mich. 180.
Cook, 66 Wis. iy5.
M People V. Baker, 76 N. Y. 78.

Also see Cook v.

Digitized by




No. 23

separation wherein no property rights, de-
mands for alimony, and questions concerning
the charge of children were inyolved. When
such is the case the action partakes somewhat
of an action in personam^ and as such no ef-
fect can be given to a decree which will bind
an absent defendant. If the defendant be
the husband, the decree for alimony of a
foreign tribunal against him, h€ having had
only constructive notice, is not binding upon
him, on the principle that no State can effect
the property or status of a citizen of another
State. This would be giving extraterritorial
effect to the judgment of a court against a
non-resident, who has not submitted to its

IV. Its Validity as a Foreign Judgment in
other States, — By § 1, art. IV of the consti-
tution of the United States it is provided as
follows : *^Full faith and credit shall be given
in each State to the public acts, records and
judicial proceedings of every other State.
And the congress may by general laws pre-
scribe the manner in which such acts, records,
and proceedings shall be proved, and the
effect thereof."

In accordance with this provision congress
passed the act of May 26, 1790, to this effect.
**The said records and judicial proceedings
authenticated as aforesaid shall have such
faith and credit given to them in every court
within the United States as they have by law,
or usage in the courts of the State from
whence the said records are or shall be taken."
"Therefore," says Story, **if in such court
it hath the faith and credit of evidence of the
highest nature, viz., record evidence, it must
have the same faith and credit in every other

The ancient maxim, res adjudicata pro
veritate accipitiis, lies at the bottom of these
federal laws, hence when the judgment or
decree of a sister State is produced, the
courts of our State must presume that the
tribunals of the other had jurisdiction both
of the subject-matter and the parties, and
acted in accordance with its own statutes.
The onus of impeaching such a judgment is
thrown upon the one against whom it is urged.
Says Phillips: '*It may be stated now as a
principle now uniformly observed and sanc-
tioned throughout the United States, that the
judgment of one of the State courts is of the
same dignity in every other State as in the

one where it was pronounced, and hence if
in the courts of the State where the judgment
was pronounced it is conclusive in its opera-
tion as evidence or otherwise, it must be
equally so and to the same extent and in all
the courts throughout the United States. "^^

This was the great doctrine laid down in
the leading case of Mills y. Duryea, ever
since followed by the Supreme Court of the
United States, as, seen by an examination of
the later cases of Cheever v. Wilson,^^ and
Pennoyer v. Neff.** But while such effect is
to be given to the judgments of divorce of
other States, the above cases and others
maintain that such judgments may be wholly
impeached by showing that the court render-
ing them had not jurisdiction, and it makes
no difference whether the judgment comes in
question directly or indirectly.** So when
there has been fraud practiced upon the
court, by the moving party, as in not obtain-
ing a bona fide domicile before making appli-
cation, or in making false affidavits as to his
or her knowledge or ignorance of the where-
abouts of the defendant to secure an order
for publication and thus avoid personal serv-
ice. Such fraud vitiates the judgment, but
the innocent party must bring action on the
fraud within a reasonable time after he re-
ceives notice thereof, otherwise the courts of
another State will not interfere and allow the
party defendant to receive advantage from
his own neglect. Such frauds, moreover,
may be shown in another State when the ac-
tion is between the same parties or their
privies, and on the same subject-matter.
Nevertheless, the courts have always been
very reluctant to set aside a judgment of di-
vorce obtained in another State, unless fraud
or want of jurisdiction can be conclusively
shown. For one of the parties relying upon
the validity of the divorce may have re-mar-
ried, and thus the interests of innocent third
parties may have become involved.

Says Peck, J., in Parish v. Parish:*^ **A
judgment or decree which affects directly the
stattLS of married persons by sundering the
marital tie, and thereby enabling them to con-
tract new matrimonial relations with other

17 Phillips' £y. (Cowen & HUl's Ed.) Note 805, pp.
M 9 Wall. 108.
M 95 U.S. 714.

» Elliott V. Piersol, 1 Pet. 828.
M 9 Ohio St. 584.

Digitized by


Vol. 28



and innocent persons, should never be re-
opened. Sach a course would endanger the
peace and good order of society and the
happiness and well being of those who, inno-
cently relying upon the stability of a decree
of a court of competent jurisdiction, have

Online LibraryAugustus John Cuthbert HareThe Central law journal, Volume 28 → online text (page 134 of 151)