[404] Act of Feb. 24, 1859, amending the act of 1852: _Laws_ (1859), 730, 731.
By the present law of Delaware, which has existed since 1873, the superior court may decree absolute divorce for (1) adultery in either spouse; (2) desertion for three years; (3) habitual drunkenness; (4) impotency at the time of marriage; (5) extreme cruelty; or (6) conviction of felony, as in 1859. The discretionary grounds on which the court may grant either full or limited divorce are now reduced to two, these in substance being nearly identical with the fourth and eighth causes sanctioned by the statute of 1859.[405]
[405] _Cf._ Act of March 12: _Laws of Del._ (1873), 633-35; or the same in _Rev. Stat._ (1874), 475; with _Rev. Stat._ (1893), 595.
The discretionary grounds are now (1) "procurement of the marriage by fraud for want of age, the husband being under the age of eighteen years or the wife being under the age of sixteen years at the time of the marriage, and such marriage not being after those ages voluntarily ratified;" (2) "wilful neglect on the part of the husband for three years to provide for his wife the necessaries of life suitable to her condition."
The history of judicial divorce in the West begins with the statute adopted for the Northwest Territory in 1795. Jurisdiction is vested in the general court and the circuit courts, which are empowered to grant absolute divorce (1) for adultery; (2) impotency; (3) where either person had a husband or wife alive at the time of the second marriage; or to grant partial divorce for extreme cruelty in either spouse.[406] This law was repealed in 1804 by an act of the legislature of Ohio--that portion of the Northwest Territory having been made a state in 1802--giving the supreme court sole cognizance of divorce suits. By it no provision for partial divorce is made; but full dissolution of marriage is sanctioned (1) for bigamy, as in 1795; (2) for wilful absence for five years; (3) for adultery; and (4) for extreme cruelty.[407] After eighteen years' trial, the plan of 1804 was in its turn superseded. Six grounds of absolute divorce were then provided. Of these four are identical with those just mentioned, except that the term of wilful absence is reduced to three years. In addition there are recognized (5) physical incompetence at the time of the marriage; and (6) sentence with actual imprisonment for violation of the criminal laws of the state, provided application be made during the term of confinement.[408] Two years later a new plan was adopted. Absolute divorce was permitted for the six causes allowed in 1822; and partial divorce, which had not existed by statute for twenty years, was revived; the courts, on the same six grounds, being authorized, instead of full dissolution of wedlock, to decree separation from bed and board, or merely alimony, according to justice and the circumstances in each case.[409] This provision, however, was short-lived; for in 1833 partial divorce was a second time abolished.[410]