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Shaw v. Shaw

Significance

This case illustrates why divorces were so rare during most of American history. Patriarchal rights were a given, spousal rape was not considered bodily harm severe enough to constitute cruelty, and jealously was apparently justified in the eyes of the courts.

Divorce, until recently, has been rare in America. During the colonial period, anyone seeking a divorce had to produce written proof of the date of marriage and obtain signed petitions of support. In those days, the most frequent petitioners were abandoned wives. However, after the war for independence, many of the new states reformed their divorce laws, with women successfully suing for divorce as easily as men. In the South, however, courts rarely permitted divorce for any reason. Couples who wanted to separate had three options. The first was divorce a vinculo matrimonii, or absolute divorce, which permitted remarriage. Connecticut and Massachusetts granted this type of divorce and only for adultery, cruelty, and desertion. The second option was divorce a mensa et thoro, a permanent separation "from bed and board." This arrangement was more common, but did not permit either party to remarry. The third option was a private divorce in which couples simply lived apart.

Connecticut's divorce laws were more liberal than any other state except Massachusetts. In these two states--probably because of the influence of the Puritans who viewed marriage as a civil, not religious, ceremony--marriages were more easily dissolved. Connecticut divorce degrees gave each party the legal status of unmarried persons. Therefore, divorced women could own and control property, sue or be sued, engage in business, and participate in other activities denied to wives.

Additional topics

Law Library - American Law and Legal InformationNotable Trials and Court Cases - 1833 to 1882Shaw v. Shaw - Significance, Sticks And Stones, Patriarchal Power, Spousal Abuse, Further Readings