The American Revolution Starts a Revolution in Divorce Laws

Before the American Revolution, the citizens of the Thirteen Colonies were subject to British Law. Over time, British Law as practiced in the United Kingdom, which at the time was England, Scotland, and Wales, changed as judges and attorneys adapted practices from the home islands to the realities of Colonial America.

The laws governing divorce in the U.K. favored the male. All he needed was proof that his wife committed adultery. The wife was required to prove that her husband either beat her or committed adultery that was combined with incest and or polygamy.

With that proof, he or she had to go to Parliament to have a divorce decree passed. Besides being embarrassing, this made divorce a matter of public record.

Understand that at the time, when a woman married, all her assets became the property of her husband, which also included any children. This was a carryover from medieval times, when members of the royalty arranged marriages for their daughters to increase their landholdings, improve their position in the king or queen’s court, or build political and military alliances. Arranged marriages and restrictions on divorce were tools to protect their titles and property.

In Colonial America, marriage was a way for families to forge alliances that were good for their respective businesses. Familial relationships also opened political doors.

In the lower and middle classes, marriage was seen as a way to expand business. For example, daughters of carpenters and blacksmiths married sons of the same or related trades, thereby expanding the size and, often, the scope of the family business. However, divorce was still expensive, and many didn’t have the connections or money to get an act through their legislature.

Couples wanting a divorce had to meet the same criteria as required in England, with the difference being that they needed to go to their colonial legislature to have the marriage annulled. Until the American Revolution, Colonial legislatures passed an average of one or two acts granting divorce each year.

The American Revolution happened, and the U.S. began to move away, albeit slowly, from British divorce practice. Eliminating the requirement to petition a colonial legislature to pass a bill approving the divorce was the first step.

However, since marriages were recorded and considered legally binding. In 1787, New York’s State Assembly passed laws that allowed newly created state courts to approve divorces if either party committed adultery, and the power to require the husband to pay alimony and childcare!!!

New Jersey followed suit the following year. Those in the state who wanted a divorce could be granted for adultery, marrying a family member, abandonment for more than seven years, bigamy, and cruelty. The male was required to provide payments to ensure children were properly cared for.

In 1790, Maryland followed suit by trashing the English practice of requiring requests for divorce to be approved by its General Assembly. North Carolina courts began approving divorce on the narrow grounds of adultery and cruelty in 1794.

Despite these changes, progress wasn’t uniform throughout the country. For example, South Carolina allowed court-approved divorces between 1872 and 1878. Before 1872 and after 1878, a couple wanting to end their marriage still had to go to the state legislature. In 1895, the South Carolina Constitution was amended to specifically ban divorce. Before 1895, only 163 divorces had been permitted in the Palmetto State. It was not until 1949 that divorce was legal in South Carolina.

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