Metropolitan News-Enterprise


Thursday, June 24, 2010


Page 15



Divorce Law in Early Days: a Whole Lot Different




“The marriage relation is the foundation of all society, and is not to be severed on slight ground or for trivial causes. The policy of the law, therefore, is against granting divorces.”

That pronouncement came in a 1902 California Supreme Court opinion.

In similar vein, the high court declared in 1905: “The institution of marriage is an important feature of civilization, and its preservation is essential to the maintenance of organized society.”

Nowadays, by contrast, a marriage is thought of by many as a transitory state in one’s life journey, with marital vows being but a tentative statement of present intent. The posture of the law with respect to divorce has been since the advent of a “no-fault” system in 1970: “You want it, you got it.”

Attention has been drawn in the past two columns to the 1935 Court of Appeal decision dealing with the erstwhile marriage of attorney Herbert Cutler Brown and Zoe Lowe Brown. The opinion proclaimed a property settlement agreement between the parties to be invalid on the ground that a contract in contemplation of divorce contravened public policy.

Here’s a quick look at a few early California decisions in divorce cases, predating Brown v. Brown:

The California Supreme Court’s first decision arising from a divorce came at its pre-statehood March, 1850 term. It upheld a decision of court operating during U.S. military rule. The opinion declared: “By the Mexican law, which follows the canon law in this particular, marriage lawfully contracted in the face of the Catholic church, according to its rites and ceremonies and between members thereof, and finally consummated, is elevated to the rank of a sacrament, and cannot be dissolved by the civil tribunals. On the other hand, the union of a man and woman, in the character of husband and wife, without the sanction of the church, when both of them belong to the class of the unfaithful, is considered as a mere civil contract….” The parties weren’t Catholic, so the trial court had juridiction, and the decision of the judge and jury granting the divorce and dividing the property was affirmed.

An 1858 Supreme Court opinion notes that the divorce statute “says divorces may be granted from bed and board, or from the bonds of matrimony.” It reverses a decision granting to the wife an “absolute divorce.” She did have a statutory ground for a divorce—adultery—but had herself committed a marital offense: walking out on her husband, termed “wilful desertion.” The court held that “however guilty the defendant, if the applicant is chargeable either with similar guilt, or an offense to which the law attaches similar consequences, the relief must be denied; and if the applicant, though not thus guilty, is still not blameless, the relief must be limited to a divorce a mensa et thoro.”

In 1890, the high court, adopting an opinion by a panel of its commissioners, reversed a judgment of divorce obtained by a wife on the ground of “extreme cruelty.” The cruelty had taken the form of the husband, on several occasions and while drunk, shouting foul words at her. The reversal stemmed from the wife having expressed her displeasure over the incidents. The commissioners’ opinion says: “While the defamatory, obscene, and profane language of the defendant was wholly unjustified, inexcusable and unmanly, it may be said that the conduct of the plaintiff was at least unkind and censorious, and tended to provoke anger and harsh language on the part of the defendant. It probably resulted from her ill temper, bad judgment, and a mistaken view of the duty of a wife under the circumstances. She probably deemed it her duty, by means of censure, reproach, and scolding, to make her husband ‘do what was right,’ and it seems that she faithfully, in season and out of season, applied such means. In this I think she was mistaken. Intemperate husbands are seldom, if ever, reformed by such treatment, whereas uniform kindness may often prove effectual, and never harmful; but should kindness fail, and the intemperance of the husband become habitual, the wife will be entitled to a divorce on that ground alone.”

The First District Court of Appeal in 1918 upheld, as modified by it, an order of a Superior Court judge suspending an attorney from law practice for five years. He placed a newspaper advertisement that said: “Wm. R. Biaggi. Divorce, Probate and Criminal Law My Specialties.” Although attorney advertising was, in general, permitted then, there was a Penal Code section that declared: “Whoever…causes to be…printed, published, distributed, or circulated, any…advertisement…, offering to…appear or act as attorney…in any suit for…divorce…, either in this state or elsewhere, is guilty of a misdemeanor.”


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