It is a mistake to believe that nasty divorce battles are an invention of our modern world. Nothing could be further from the truth. Some of the more hellish divorces that have ever taken place did so during the late 17th and early 18th centuries.
Historically, evidentiary standards required parties to air all of their dirty laundry in order to get a divorce. The more mud you could sling, the greater were your chances of getting a divorce. To get a divorce on the grounds of cruelty, a woman had to show that her husband did something to endanger her life. To prove adultery, a spouse had to produce eyewitnesses.
Today, many states, including North Carolina, have “no fault” divorce, a provision that is meant to discourage mudslinging, between divorcing parties. (But, as you probably already know, that doesn’t stop people from doing it.) Modern evidentiary standards are now more relaxed. The conduct required to establish cruelty need not be life threatening, it just has to be so unbearable that it renders the complaining spouse’s life intolerable and their living conditions unbearable. Providing adultery most often only requires a showing that the accused had the opportunity and inclination to cheat.
Under modern day statutes, there is only one road that leads to divorce, and it runs straight through divorce court. That has not always been the case. In earlier days people had at least three other options. First, if there were no assets to fight over, parties would just pack their bags and go their separate ways when the marriage broke down. This was the option most commonly exercised by people with limited financial resources because even if they had something to fight over, they probably had nothing to fight with. Divorce litigation has always been expensive.
Another option, available to men, was for a husband to end his marriage by selling his wife to someone else. This option was popular because if a man just abandoned his wife, he was still legally responsible for her debts. If he sold her, the person making the purchase would agree to assume her obligations. According to one historian, the sale was conducted at a public auction similar to a cattle call. The husband placed a harness around his wife’s neck, led her to the auction block and like cattle she was sold to the highest bidder.
A third option available to divorcing parties was a private contract between the two. The contract would outline who got what and would include a release from each other’s liabilities. Pursuant to the contract each spouse could grant the other the right to commit adultery and remarry. Such contracts were intended to prevent a wife from coming back later and suing for alimony, but these contracts were not considered enforceable by the courts. However, since they were enter into to avoid litigation costs, the parties usually abided by the terms.
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