20 Marriage Laws That Once Made Divorce Nearly Impossible

In 1917, under U.S. territorial rule, the only way to get a divorce was if a wife had been guilty of adultery or a husband had committed concubinage, following a criminal conviction. The 1949 Civil Code of the Philippines revoked the 1917 law, and also eliminated civil divorce in the Philippines. This ban persists even today, and the Philippines, along with the Vatican, are the only two places on the planet where divorce is still banned.

In 1895, South Carolina’s constitution, drafted at a convention headed by Governor Benjamin Tillman, read like this: “Divorce from the bonds of matrimony shall not be allowed in this State.” That made it the only U.S. state to ban divorce entirely in its constitution. The law stood for over half a century, until 1948, when voters passed an amendment allowing limited, fault-based divorce.

The Constitution of Ireland, written by Taoiseach Éamon de Valera in 1937 and steeped in the principles of the Catholic religion, didn’t just ban divorce. It also banned any legislation that would allow divorce to be legalized, effectively taking the power away from the legislature. A couple could seek a judicial separation in which they could live apart while still remaining married. Divorce was banned for 58 years until 1995, when it was narrowly voted in by the people in a referendum.

The Matrimonial Causes Act of 1857 established a civil divorce court in England, removing marriage dissolution from ecclesiastical courts. However, it was based on a double standard. A man only needed to prove that his wife committed adultery in order to obtain a divorce, whereas a woman needed to prove that her husband committed adultery and also committed another offense such as physical abuse or abandonment for two years. The theory was that a man’s infidelity, unlike a woman’s, wouldn’t risk introducing false heirs into the family line. This law remained in place until 1923.

Divorce between the 19th and mid-20th centuries in the US and Britain was available to the “innocent” party injured by the guilty one. Recrimination reversed the terms of this. If a husband sought divorce on the grounds of his wife’s adultery, and the wife could show that her husband had been unfaithful to her or cruel to her, the judge had no option but to refuse the case. Double fault meant no liberation.

Soviet couples were able to obtain quick, informal divorces, sometimes known as “postcard divorces,” after the 1917 revolution. In response to the staggering demographic losses from World War II, Stalin’s regime passed a decree in 1944 that drastically changed the procedure. Couples would have to petition two different courts and advertise their case in a local newspaper at their own expense, while paying a fee that could reach up to 2,000 rubles. As a result, divorce rates plummeted, and these procedures remained in effect until 1965.

Prior to the introduction of no-fault laws, condonation was a formidable defense in American, British, and Commonwealth courts. If one spouse committed adultery or cruel treatment, but the other spouse subsequently forgave them or resumed cohabitation (even sex), then the court found that the offending spouse’s misconduct had been condoned. It could no longer be used as grounds for divorce. This forced injured spouses to leave the marital home right away after learning of misconduct, or they might lose their claim because they stayed.

During the Second Spanish Republic, there was civil divorce, thanks to a secular law that was approved in 1932. When General Francisco Franco won the Spanish Civil War in 1939, he decreed that the law was abolished and, even more drastically, that all divorces granted since 1932 would be invalid. Divorcees who had remarried found their second marriage invalidated and were forced to rejoin their first spouse. It was not until 1981 that divorce was once again allowed.

U.S., British and Canadian courts in the 18th, 19th and middle of the 20th century viewed divorce as a kind of legal suit brought by the injured party against the recalcitrant spouse. When spouses simply consented to the dissolution of the marriage, or when the respondent did not wish to contest the matter, judges would dismiss it for “collusion,” which is a fraud on the court. The court’s attitude was so severe that some litigants went so far as to hire actors to stage scenes of infidelity so that they could convince the judge that they had a genuine claim.

Between 1690 and 1857, there was no civil court in England that could grant a divorce enabling one of the parties to remarry. The only means of achieving this was to secure a private divorce by Act of Parliament from both Houses of Parliament. A husband first had to secure a separation in an ecclesiastical court, and then sue the man who was having sexual relations with his wife for “criminal conversation.” A woman did not have to do this since she lacked the legal right to take action against her husband’s mistress. The expense ran to several thousand pounds, and over 160 years, fewer than 350 divorces were granted.

In Anglo-American family courts in the 18th, 19th and up until the mid-20th century, there was one easy rule: You can’t claim injury from harm you agreed to. Connivance meant that if a spouse sued for divorce on the grounds of adultery, but the other side proved that the plaintiff had actively enticed or arranged the affair, the court decided the plaintiff had connived and refused the divorce. For example, a husband could lose his case if he had hired an investigator who entrapped his wife.

It was during the French Revolution, of course, when secular divorce was briefly legalized (1792). But after the Bourbon monarchy was reestablished, Louis de Bonald, a conservative philosopher, managed to get the Loi Bonald passed in 1816, which banned divorce outright. All cases still pending were converted into requests for legal separation; couples could live separately and even divide their assets, but the marriage bond remained unbroken. Remarriage was not permitted. No civil divorce was available in France for 68 years.

Under the chancery court doctrine of “clean hands,” a person seeking to go to court must be of irreproachable character to begin a lawsuit. Through the 1800s and early 1900s, US judges invoked clean hands to determine whether to issue a divorce decree. A husband charged with desertion could counter that his wife’s conduct, whether insulting him or neglecting her housework, was so dishonorable that she should not be permitted to shed him. This made it easy for lawyers to stop couples from getting divorced over minor moral failings.

In 1938, Germany passed a law, still on the books even after Allied forces abolished Nazi-era race laws in 1946, that would allow a couple to get a divorce after three years of living apart if either partner could show the marriage was dead. However, if one person was mostly to blame, say, for leaving the other partner or cheating, the other spouse was allowed to challenge the divorce in court. The judge had to dismiss the case unless the petitioner could prove the union really was over.

In 1787, New York’s first general divorce statute was enacted, which stipulated that adultery was the only basis for obtaining a divorce that would permit the parties to remarry. There was no escape from brutal marriages, severe cruelty, or even a felony prison term. If you were being abused, you could obtain a legal separation, but not a complete divorce. This “adultery-only” divorce system remained unaltered for 179 years before New York finally expanded the grounds for divorce in 1966.

It wasn’t until 1884, after a politician named Alfred Naquet had a law passed called the Naquet Law, that the Third Republic finally lifted the 68-year-old ban on divorce. To prevent frivolous divorces in response to legislators’ concerns, the National Assembly explicitly forbade divorce by mutual consent. Couples needed to show that one party had committed some serious misdeed, such as adultery, a crime, or a violent assault. Two people who had fallen out of love but hadn’t done anything to hurt each other were still required to stay married.

In 1865, when the new Kingdom of Italy enacted its civil code, marriage was made absolutely indissoluble. The courts could award “personal” separation, splitting up a couple’s assets and ending cohabitation, but the marriage remained intact, and no one could remarry. Subsequent civil codes and a concordat with the Vatican in 1929 maintained the strictness of the provision. It wasn’t until 1970, 105 years later, that Italy legalized divorce.

The Matrimonial Causes Act was brought into parliament by A.P. Herbert, MP in 1937. This added cruelty, three-year desertion and incurable insanity as additional grounds upon which one could divorce. The act also prevented courts from hearing any divorce petition in the first three years of a marriage, unless the petitioner had suffered “exceptional hardship” or if the respondent had shown “exceptional depravity,” to appease conservative members of parliament.

In 1950, Poland’s new Family Code made a thoroughly broken marriage a valid reason for divorce. One section of the law stated that the court must not dissolve the marriage if the interests of the minor children of the spouses require that this not be done. Family judges often refused to grant divorces based on this provision. As a result, couples were forced to remain legally married even when they no longer lived together, and neither party wished to do so.

By 1917, the Catholic Church’s first Code of Canon Law had been issued under Pope Benedict XV. Canon 1118 laid down a simple rule: A completed, valid marriage could not be dissolved by any human authority, for any reason, other than death. This canon prevented civil governments in Catholic countries that maintained concordats with the Holy See, such as Italy, Francoist Spain, and Colombia, from permitting any form of divorce to Catholic citizens.

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