Chapter Four Divorce

• Library: Marital Litigation in South Carolina (SCBar) (2020 Ed.)

Chapter Four DIVORCE

A. In General

This chapter covers the substantive law of divorce. The only form of divorce recognized in South Carolina is divorce a vinculo matrimonii (divorce from the bonds of marriage).

The history of divorce is unusually important in South Carolina. The Supreme Court has consistently referred to that history in construing the divorce laws and has occasionally used it as part of its rationale in arriving at relatively narrow interpretations of the State's statutes. Thus, practitioners should be aware of the historical development of divorce law in South Carolina, not only out of a general desire to understand the context in which the courts operate, but also because that history may well have an independent present effect upon litigation of marital cases.

The overall trend of legislation and judicial decision-making in the Anglo-American jurisprudence of divorce has been one toward increasing the legal ability of spouses to separate. Our idea of marriage developed largely from the teachings of the Christian religion, those being principally derived from interpretations of passages in the New Testament books of Matthew 19 and Mark 10, with Old Testament roots. In many Western societies the Roman Catholic tradition that marital matters are almost exclusively reserved for the church remains strong, and civil interference in home life is rare. Of course, Roman Catholic doctrine still teaches the indissolubility of marriage, this status stemming from the fact that marriage is regarded as a sacrament, administered by the parties to each other at the time the marriage contract is sealed or otherwise solemnized.

The Christian idea that marriage should be dissolvable was not well accepted in Rome and developed slowly even in medieval Europe. Ever since that time, there has been an ongoing struggle between conflicting societal urges toward family stability and toward individual freedom of choice. Given the religious position noted above, the struggle has often taken the form of a conflict between Church and State (at least on the surface), as is perhaps most notably exemplified by the English Reformation and the establishment of the Church of England with the King as its head during the reign of Henry VIII, an act based at least in part upon the refusal of the Pope to authorize an annulment of Henry's marriage to Catherine of Aragon.

While one might have expected Henry VIII to liberalize legal/ecclesiastical approaches to marital separations (and there did, apparently, ensue in the sixteenth century in England some confusion about the extent to which remarriage after separation might be permissible), it became clear by the beginning of the seventeenth century that no judicial divorce would be permitted in England, a position that was adhered to until 1857. However, a device known as divorce by Act of Parliament did come into being by the end of that century. While it was difficult to obtain due to the time and expense involved (and was, in keeping with the nature of the society, almost always given to men rather than to women), its existence did serve to solidify the idea that the State - the political authorities as opposed to the religious authorities - had authority in marital matters. Further, the example set by the English Parliament was followed by a number of American colonial legislatures, with the practice of granting divorce by legislative act persisting in this country in some places into the middle of the nineteenth century.

Nonetheless, the fact remained that the ecclesiastical courts — an institution that was not imported into the colonies — exercised general jurisdiction over marital matters, including the judicial separation (divorce a mensa et thoro, or from bed and board) and its consequences. As a result, it has been generally held in this country that divorce jurisdiction is purely statutory, the courts not inheriting any rights from the English common law since the common law did not concern itself with marital matters (although the court of chancery did deal with alimony during the Protectorate). See Nocher v. Nocher, 268 S.C. 503, 234 S.E.2d 884 (1977) (holding that divorce a mensa et thoro does not exist in South Carolina). This view was taken in the courts of South Carolina early on and has colored the approach of our legal system to questions of divorce.

Courts in the Southern colonies in general were reluctant to address matrimonial matters, as were Southern legislatures. The South Carolina Court of Errors took perhaps the most extreme position in the colonies in this regard, explicitly refusing in 1848 any jurisdiction either to annul a marriage or to grant any form of divorce. In Mattison v. Mattison, 32 S.C. Eq. (1 Strob. Eq.) 387 (1846), Chancellor Dunkin confirmed that the Court meant what it indicated in dictum in the earlier case of Rhame v. Rhame, 12 S.C. Eq. (1 McCord Eq.) 197 (1826). It somewhat contradictorily admitted that South Carolina had equity jurisdiction to award alimony when marital partners had separated, such jurisdiction being based on the hard reality that there was no other court to exercise it since there were no ecclesiastical courts in the state; but it held that the court lacked authority to "grant divorce." Rhame at 205. This was odd because the courts would have to look to the grounds upon which divorces might be granted in England in order to determine whether to award alimony in South Carolina. In Mattison the Court acknowledged that a chancellor or a law court might have the power to rule on the validity of a marriage if it were to arise collaterally to another matter properly before the court. However, insofar as a direct attack upon the marriage contract itself was concerned, based either upon alleged defects at its inception or upon conduct of the parties while married, the Court opined that the legislature had 20 years since the Rhame case in which to bestow upon the Chancellor (or someone) divorce jurisdiction, had not done so, and hence had foreclosed any exercise of that jurisdiction. Its language is instructive:

The silence of the Legislature is conclusive — regarding the sacred nature of the marriage contract as a matter of public interest, they will neither interfere with it themselves, nor delegate to others the power to dissolve it. The distinction between the authority to declare a marriage null and void, or to grant a divorce, has no sanction either in reason or authority.
Whether wisely or unwisely, the Legislature has thought proper to withhold these powers. They have delegated to no Court the authority to declare a marriage null and void, and they have never themselves exercised the authority. Cases of individual hardship have occurred, and will occur; but the observation of a different policy in other States, as well as the experience of our own, has served only to confirm the conviction that it is better to tolerate occasional suffering than to jeopardize the peace of society, and open a wide door to fraud, imposition and other immorality.

Mattison, at 392-393.

Drafted in the years following the Civil War, the South Carolina Constitution of 1868 provided, in Art. IV § 15, that the courts of common pleas should have exclusive jurisdiction in all cases of divorce, and in Article XIV § 5, required that no divorce should be granted but through the judicial process. In the legislative session of 1872, a divorce act, 15 Stat. 30, passed and for the next six years, until 1878, it was possible in theory to obtain a divorce in South Carolina on the grounds of adultery and willful desertion. In 1878 the statute was repealed in toto by the Legislature (916 Stat. 719). The repeal served to terminate the only known divorce action that was apparently brought under the Act. The Supreme Court ruled in Grant v. Grant, 12 S.C. 29 (1879), that the repeal rendered the suit unauthorized. Although the action was commenced eight days before the repeal, there was no law authorizing divorce at the time the cause came up for trial.

The Constitution of 1895 specifically prohibited divorces. Article XVII § 3 stated simply and directly: "[d]ivorces from the bonds of matrimony shall not be allowed in this State." This provision remained intact until 1949, at which time the Constitution was amended to authorize divorces from the bonds of matrimony (a vinculo matrimonii) on the grounds of adultery, desertion, physical cruelty, or habitual drunkenness. The resulting statute (S.C. Code Ann. § 20-3-10 (1946)) was amended in 1952 with the addition of a section providing that habitual drunkenness was to be construed as including causation of drunkenness by use of any narcotic drug. Article XVII § 3 of the South Carolina Constitution was amended further in 1969 to permit divorce to be granted on the ground of continuous separation for a period of at least three years and was further amended in 1979 to reduce the separation period to one year. This is the posture in which the Constitution currently stands.

In the first case to come to it after the 1949 Constitutional amendments, the Supreme Court traced the history of divorce in South Carolina and then proclaimed the public policy of the state:

It is generally recognized that the public policy relating to marriage is to foster and protect it, to make it a permanent and public institution, to encourage the parties to live together, and to prevent separation. This policy finds expression in probably every state in this country in legislative enactments designed to prevent the sundering of the marriage ties for slight and trivial causes, or in any case except on a full and satisfactory proof of such facts as the legislature has declared to be cause for divorce. Such provisions find their justification only in this well-recognized interest of the state in the permanency of the marriage relation.

Brown v. Brown, 215 S.C. 502, 508, 56 S.E.2d 330, 333 (1949).

B. Jurisdiction

1. Subject Matter Jurisdiction

The...