When the State Had an Interest in Marriage: Colorado's Divorce Acts, 1861-1917
| Jurisdiction | Colorado,United States |
| Citation | Vol. 09 No. 1987 Pg. 1627 |
| Pages | 1627 |
| Publication year | 1987 |
1987, September, Pg. 1627. When the State Had an Interest in Marriage: Colorado's Divorce Acts, 1861-1917
Colorado's rapid growth in 1859 called for the establishment of laws regulating marriage and family, and the first territorial statute concerning divorce and alimony was passed in 1861. This article discusses the general provisions of the early acts and focuses on the concerns of the early divorce courts. Those courts gave particular attention to the potential for fraud, the sufficiency of constructive service and notice to parties, and the adequacy and fairness of financial settlements. Occasionally, they were also called upon to decide constitutional challenges.
In the summer of 1859, 50,000 people streamed into eastern Colorado, their hopes for fortune and success fired by tales of the 1858 gold strikes.(fn1) This rapid influx of miners and fortune-seekers spurred the need for self-government, and an early form of democratic town meeting, known as "miners' courts," soon began to appear. These courts, memorialized in the large mural in the Denver District Court Civil Clerk's Office, settled disputes over mining claims, and later heard all types of cases. In some areas there were also "people's courts," termed by one historian a "slightly advanced form of the vigilante committee."(fn2) The accused had the right to representation by counsel, with formalized court procedure, but the punishment for most offenses was death or banishment, and there was no right of appeal.(fn3)
In February 1861, Congress passed the Organic Act ("Organic Act of 1861") creating the Territory of Colorado. Later that same year, an Act concerning Divorces and Alimony ("1861 Divorce Act") was enacted by the First Session of the Territorial Assembly, which set forth grounds for divorce that remained almost unchanged for 100 years. Other important acts concerning divorce and alimony were passed in 1867 by the Territorial Assembly of Colorado; and by the State General Assembly in 1877, 1893 (the year Colorado became the second state in the union to grant the franchise to women) and 1917.
The Organic Act of 1861 provided that the judicial power of the Territory was to be vested in a Supreme Court, district courts, probate courts and justices of the peace. The Supreme Court and the district courts were given chancery, or equitable jurisdiction, as well as common law jurisdiction.(fn4) The 1861 Divorce Act specified that the district courts would have jurisdiction of all divorce and alimony cases, sitting as a court of chancery.(fn5)
The system established by these early acts was clearly based on fault, and the reluctance of lawmakers to sanction divorce for any but the most serious reasons was based on a commitment to the belief that
[t]he institution of marriage lies at the foundation of our civilization. It is the safeguard of education and true religion, the promoter of public and private morals, and the conservator of social order.(fn6)
The 1861 Divorce Act provided that the court could decree a dissolution of the marriage on the basis of certain statutory grounds between any two persons who had contracted and solemnized the marriage, but the party seeking the divorce had to have resided in the Territory for "one whole year" prior to filing the bill for divorce.(fn7) However, if the offense which provided the ground for the divorce had been committed within the Territory, or while one or both parties resided in the Territory, this residency requirement could be set aside.(fn8) Clearly, the Territorial Assembly wished to prevent new residents from using the state to seek hasty divorces. The Act also provided that any woman who could establish her indigency would be allowed to prosecute her suit without costs, and that, in such circumstances, no
The interest of the state in preserving marriages was also evident in the procedure governing divorce actions. After a bill for divorce was filed, if the defendant appeared and denied the charges in the complaint, the parties to the divorce were then required to try their case to a jury. If the allegations were confessed, the court would conduct a hearing of the case, with examination of witnesses in open court, or would refer the cause to the Master in Chancery to take proofs.(fn10) Emphasis was placed on the importance of the court obtaining adequate and accurate testimony.(fn11)
In contrast to the present standard of an irretrievable breakdown between marriage partners,(fn12) the circumstances recognized by the Territorial Assembly as grounds for divorce were quite specific. They included, for either marriage partner, impotence (or barrenness); adultery; an existing spouse at the time of the marriage; willful desertion without...
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