Divorce is “the desolution of a marriage by court order”.  Both forms of divorce [mensa et thoro and a vinculo matrimonii] are created by a court order, under the common law of Virginia, and  not by statute or legislature. Marriage was [is] a civil contract, with  *civil * being part of  its legal definition.  A divorce was a legal matter of a broken civil contract, “decided by court”, which is the legal definition in common law, as well as by later statutes. [1 Bl. Comm. 440] [3Bl.Comm. 94]  [2 Bish Marriage and Divorce. Sec 225] [Black’s Law Dictionary, 3rd edition, (St. Paul, Minnisota: West Publishing Company, 1933), 602, 1163-1165 ].



Divorce was not addressed by statute in colonial Virginia. Divorce was discouraged, as it is today.  Divorce happened anyway, just as it does today. Before written statutes were passed, and since the time of Henry VIII, divorces were handled in the courts. The legislature was the last resort, and the party was usually, if not always, asking for an exception to the law, feeling they were wronged by the court.



In the Wilson case cited on this list, [Prince William County Deed Book Q,1763-1768: 404-406], the couple “do mutually absolve and Desolve their marriage vows”. This clearly and unequivocally states the couple is receiving a divorce a vinculo matrimonii, or a complete divorce, [release from vows], and not mensa et thoro.



In the case cited of a man announcing his refusal to pay his wife’s debts, the case was probably a divorce a vinculo matrimonii.  Paying for the wife’s support was one of the “community of duties”  a husband owed the wife, by law.  He was not able to sever that duty for any reason, until all marriage bonds were severed by a divorce a vinculo matrimonii. Divorce mensa et thoro only released the couple from living together.  In fact, it ordered them not to live together.  The bonds, or vows, remained in effect, including the duty of financial support, in mensa et thoro. [3 Bl. Comm. 94] [2 Steph. Comm. 310, 311] [There is a very slight chance this man was intimidating creditors into refusing the wife’s purchases, with the intent to force her to come home, and was not acting on any legal authority in refusing her debts. That was such a legal risk for him, I’d assume he was divorced avm.]



Beware of any unsigned articles on the net, articles with no citations to sources, or articles discussing law “in the Southern states”, as if there was only one set of laws in the south.  Some southern states operated under English common law, while others didn’t.   Even the states that did use English law all changed their laws at different times and in different ways.  ALL southern states were different. The only way to know what the law was at a given time and place is to trace a statute back in time, through different changes, or to read a legal treatise, or commentary, written during the time period in question, or shortly thereafter.



I’m not a lawyer, just a mere paralegal.  I was privately tutored in SC and VA common law, sat through 400 hours of court as part of an internship, worked in Juvenile and Domestic Relations Court, and for the Commonwealth’s Attorney’s Office [state prosecutors]  in Virginia Beach. I would not presume to know what Virginia common law was at any given time, without looking up the specific law in the correct time period.  I have never heard it suggested that divorce a vinculo matrimonii was not legal, or not allowed in Virginia, or was only granted by the legislature.  If anyone has a citation to an exact statute and date of such a ban, I would be very interested in seeing it.



Langdon Hagen-Long


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