Divorces Increase by Half

Newspaper article

By: The New York Times

Date: January 1, 1920

Source: "Divorces Increase by Half." New York Times (January 1, 1920).

About the Author: Published since 1851, The New York Times is a daily newspaper that is widely regarded as a newspaper of record in the United States.

INTRODUCTION

Divorce is defined as the legal separation of a husband and a wife that is made effective by the judgment of a court of competent jurisdiction, where the marriage is dissolved. Divorce is distinct from marital separation in that separation of two spouses is not necessarily permanent.

In the earliest days of the Christian church, there was a general prohibition against divorce. Marriage was seen as a sacred institution and one that could not be altered by man. In the 1800s, courts based in the Anglo-American judicial system began to regard marriage as having both a civil and a religion component; in their supervisory duties with regard to the civil law, courts acquired the power to terminate marriages by way of a divorce decree. In countries that have a federal constitutional structure such as the United States, individual states have the power to establish laws regarding the circumstances in which divorce will be permitted.

Many religious faiths continue to consider marriage as an inviolate contract before God. The courts have ruled, however, that even where a particular person regarded his or her vows of marriage as an inviolate part of their religious faith, the legal system has the jurisdiction to terminate the civil contract that also exists between married persons provided the appropriate grounds to do so were established.

Historically, the legal grounds upon which a court could terminate a marriage were limited to acts of spousal misconduct. Prior to the no-fault divorce (divorce by consent) regimes that became the law in many American states beginning in the 1960s, a divorce could only be granted upon the petition of one of the marriage partners to a court where the party could prove adultery or desertion (abandonment). In companion legislation to the divorce laws, courts were empowered to grant an annulment of the marriage if there existed a physical inability to consummate the marriage through sexual intercourse, or where one party had committed bigamy. New York passed legislation in 1813 that specified that both mistreated and deserted wives could petition for divorce, a law that was the most liberal in the nation at that time.

Given the strict rules by which divorce could be granted and an absence of authority to permit divorce on the basis of the desire of the parties to become divorced, collusion in the manufacture of divorce grounds was a source of common judicial complaint from the early days of the New York statute until the no-fault regime was introduced in 1966. No-fault divorce is commonly instituted upon the agreement of the parties that there exists irreconcilable differences between them, or an otherwise permanent breakdown of the marriage.

One legal feature consistent with New York divorce law in 1918 and that of the present day is the requirement of residency. At least one of the parties to the divorce action must have been resident in the state for the 12 months prior to the commencement of the proceeding.

The liberalization of divorce laws in New York and throughout the United States precipitated a significant increase in the number of claims collateral to the divorce proceeding, usually advanced by the female spouse for equalization of family property acquired during the marriage, legal proceedings that were rare in 1918. In a similar fashion, divorce proceedings may also include contests concerning child custody, child and spousal support.

PRIMARY SOURCE

      More Than 1,400 Cases Filed in City During 1918.

Records in the County Clerk's office show that more than 1,400 divorce cases were filed in 1919, an increase of approximately 50 per cent, over the preceding year. The number was slightly more than 900. The 1918 figures were slightly lower than for several previous years. The exact figures will be made public in a few days in the annual report of County Clerk William F. Schneider.

Supreme Court Justice Samuel Greenbaum, who has heard many divorce cases, said yesterday he believed the increase was due to the fact that "world morals are becoming more materialistic."

"Home life without families, and living in small apartments has had much to do with it," he said.

Supreme Court Justice Vernon M. Davis said that as a lay delegate to the recent convention of the Protestant Episcopal Church in Detroit, he had tried unsuccessfully to have a canon adopted forbidding the remarriage of even the innocent party in a divorce as a remedy. He attributed the increase to a lessening of the sanctity of the home.

Records of the Marriage License Bureau show that there were 11 per cent more marriages in 1919 than in 1918. In the last year City Clerk Scully has issued approximately 40,000 marriage licenses, as against 35,163 in 1918. Ex-service men predominated among the applicants.

SIGNIFICANCE

The rise in divorce cases that prompted the New York Times commentary in 1920 is of interest today because the number of divorces cited seems so modest by modern standards. The divorce rate in the United States appeared to peak statistically in 1980, when there existed the likelihood that more than 40 percent of the marriages made that year would end in divorce. Expressed as a ratio, 5.3 persons per 1,000 persons in 1983 were divorced; in 1950, the ratio was 2.6 per 1,000. Much of the 1980 peak has been attributed to the introduction of consent or no-fault divorce that took place in virtually every American state during the 1960s and early 1970s. As divorces became easier to obtain, the applications became more frequent.

A second contrast between the attitudes towards divorce as described in 1918 and the modern day is the relative stigma attached to the divorced spouses. In a fault-based divorce jurisdiction, the basis for the grant of the divorce turned on an express finding of matrimonial misconduct; divorce therefore carried both society's moral judgment as well as the legal termination of the marriage. Even where the party was successful in establishing the fault of the other spouse, the stereotypical divorcee did not enjoy the same status as a married person, having sustained a failed marriage. No-fault rules, in addition to making divorces easier to obtain, also contributed to the lessening of the stigma attached to the proceedings.

The comments attributed to Supreme Court Justice Davis in the article are inconceivable on the part of a judge today. The justice made plain his bias with respect to both the grant of divorces and the limitations that he urged upon his co-religionists of the Episcopal Church. Under modern rules concerning judicial partiality, it would be doubtful that the justice would be permitted to hear a divorce action.

The 1918 data from New York is also significant because at that time, the city was perceived by Americans to be a social bellwether, a place where trends began that might be adopted throughout the country. While divorce rates rose markedly in the late 1960s to the 1980 peak, 1918 represents the statistical commencement of a long period of steadily increasing divorce rates that was only broken by the intervention of World War II.

Although the New York Times article does not set out an exhaustive statistical analysis of the marriage rate for 1918, an 11 percent increase in marriage applications is noted, a function of the fact that there were large numbers of service men returning home from World War I. In 2004, 7.8 persons per 1,000 were married during that year, contrasted with 3.7 per 1,000 who were divorced.

Another prominent modern social factor that did not exist to any significant degree in 1918 is the number of persons who reside in common law relationships. Living in such a relationship in 1918 carried an even greater social stigma than being divorced; a child born out of wedlock was regarded as illegitimate in the eyes of most Christian faiths and could not be baptized. The termination of these relationships is not captured in divorce statistics.

Notwithstanding the greater frequency of divorce in modern society, coupled with the option of common law cohabitation, marriage remains a desirable option in the opinion of most persons in North American society. The divorce rate is not perceived as a deterrent for entry into first or subsequent marriages. Data in both the United States and Canada confirms that the divorce rate for second marriages is between thirty percent and fifty percent higher than that for first marriages.

FURTHER RESOURCES

Book

Friedman, Lawrence M. A History of American Law. New York: Touchstone, 2005.

Periodical

Hilfer, Anthony Channell. "Marriage and Divorce in America." American Literary History 15 (2003): 592-602.

Web site

New York Divorce and Family Law. "Divorce: History of Divorce in New York." 2006 〈http://www.brandeslaw.com/grounds_for_divorce/history.htm〉 (accessed June 21, 2006).