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Concept of Divorce in English Law


In Jowitt’s dictionary of English Law, Edition-II, Sweet & Maxwell, divorce was a term used by the ecclesiastical courts to signify an interference by them with the relation of husband and wife. It was of two kinds – a divorce a mensa et thoro (from bed and board), granted in cases where the husband or wife had been guilty of such conduct as to make conjugal intercourse impossible (as in the case of adultery, cruelty, etc.); and a divorce a vinculo matrimonii (from the bond of marriage), granted where the marriage was voidable or void ipso jure (as in the case of the parties being within the prohibited degrees, or one of them having been already married, or being impotent when married). The former is now represented by judicial separation, the latter by a decree of nullity of marriage.

In Halsbury’s Law of England, Fourth Edition, Volume 13, in paragraphs 501 and 502 it is mentioned that the law relating to matrimonial causes was much influenced by the ecclesiastical canons and former practice of the ecclesiastic courts. That influence gradually diminished, and modern legislation has very considerably cut it down. It was also noted that from the middle of the twelfth century the ecclesiastic courts were recognized as having exclusive jurisdiction in matters of marriage and divorce, as that term was then understood, and since the Church of Rome was the supreme ecclesiastic authority in England the ecclesiastic courts applied the canon law in matrimonial causes. Christian marriage was indissoluble, but divorce a mensa et thoro, in the nature of the present day judicial separation, that is divorce without the right thereafter to marry another person while the former spouse still lives, was granted for certain causes. Subsequently, there developed in course of time a method of divorce a vinculo matrimonii, that is divorce in its current meaning of dissolution with the right thereafter to marry another person while the former spouse still lives. It was also noted that after the enactment of Matrimonial Causes Act, 1857 in England, divorce means dissolution of marriage with the right thereafter to marry another person while the former spouse still lives.

From the above discussion, it is clear that the marital relations between husband and wife under English law could be interfered with by way of judicial separation, annulment of marriage or dissolution of marriage. The last of the expressions has now become synonymous with the word ‘divorce’. It is, however, important to note that traditional divorce included the concept of judicial separation without resulting in a dissolution of marriage

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