Divorce, Civil Code, and Common Law: The Case of Nineteenth-Century United States

Resumen

Assumptions about the differences between common law and civil law have profoundly shaped understandings of US legal history and have rendered nineteenth-century American civil codes invisible to all but the most specialized legal scholars. During the nineteenth century, the states of Louisiana, Georgia, California, Dakota Territory, North Dakota, South Dakota, and Montana each enacted a civil code, creating a single document enforced by the state, which brought together all of the sources of private law. Simultaneously, divorce developed as a prominent legal issue, prompting an exploration of the interplay between civil codes and divorce legislation. How did civil codes and divorce impact each other’s? While the breakdown of marriages often unfolded within the private sphere, the parameters and conditions governing their instances were outlined within the public sphere of civil codes of individual states. The legal framework governing divorce proceedings underscored the era's societal and cultural norms, thereby exerting a profound influence on the dynamics of marital relationships. Through an analysis of the pre-existing divorce laws, the incorporation of divorce regulations within the civil codes, and the ruling of State Supreme Courts in the civil code states, this article seeks to elucidate whether the civil codes served as catalyst for legal transformation, reshaping the legal landscape, or whether they merely mirrored the existing legal framework. The study examines the reciprocal influence between evolving divorce practices and the legal provisions encapsulated within the civil codes, aiming to ascertain the directional flow of change between these intersecting legal domains.