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3 S. C. L. Q. 253 (1950-1951)
The South Carolina Divorce Act of 1949

handle is hein.journals/sclr3 and id is 271 raw text is: THE SOUTH CAROLINA DIVORCE ACT OF 1949 J. D. SuMNIR, JR.* HISTORIcAIL BACKGROUND Law in England Prior to 1857 Until the reign of Henry VIII marriage in England was looked upon as a sacrament and therefore indissoluble.' This was because the Roman Catholic faith, which was established in England after the Norman Conquest, considered marriage as a contract of divine origin rather than one of human convention; and the essential quali- ties of this contract were deemed to be indissolubility and unity.2 The belief that this law was promulgated by Christ and therefore inviolable is still part of Catholicism today.5 Because of these re- ligious convictions, the ecclesiastical courts, which had jurisdiction over domestic cases, did not award absolute divorces during this period of English history even though there was gross post nuptial misconduct, such as adultery, by one of the spouses.4 However, the ecclesiastical courts in England did award a divorce a mensa et thoro which was nothing more than a judicial separation.5 Such a separation could be had at the instance of either the husband or the wife when the other party was guilty of post nuptial misbe- havior which made further cohabitation impossible. Rigid proof was required in such cases and the petitioning spouse had to show that he was free from guilt. Since the divorce a inensa et thoro did not dissolve the marriage, but only authorized a separation, a party did not lose his marital right in the other's property. More- over, neither could remarry to a third party. A divorce a inensa et thoro ended at such time as the parties were reconciled. The ecclesiastical courts, in addition to the divorce a mnensa et thoro, granted annulments. These decrees of nullity did not dis- solve the consummated bonds of marriage. They were merely ju- dicial declarations that the marriage was null and void ab initio be- cause of some invalididating impediment which existed at the time *Professor of Law, University of South Carolina. 1. MADDEN, PERSONS AND DOmrsnc RrLATiONs 256 (1936). 2. 1 BISHOP, MARRIAGE AND DIVORCE §§ 27, 28 (5th ed. 1873). 3. 2 VIRG IIA LAW WEKI.y DICTA 15 (1950). 4. BL. Comm. 188 (Gavit's ed. 1941). 5. Ibid.

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