SELFISH INTENTIONS - K-REx - Kansas State University

In the United States, legal authorities wanted to maintain the integrity of the marriage
union; therefore, early divorce laws made it difficult to get divorced. When two individuals, a
man and a woman, signed a marriage contract, their identities as two individuals became
secondary to their identities as husband and wife. The “unit” established by the marriage was
now a matter of public interest and of greater social importance than either individual. Legally,
legislatures writing the laws and the courts enforcing them did their best to maintain this unit.
When one member of the unit petitioned for divorce, in effect they were claiming the actions of
the other member of the unit had violated the legal and sacred bonds of that unit. In Man and
Wife in America, Hendrik Hartog explains the dominant legal thought of the period:
Divorce laws belonged to the public, not to the parties themselves. They were not
intended to allow couples to escape identities assumed in marriage. Divorce
punished the guilty for “criminal” conduct. Conversely, divorce allowed an
“innocent” spouse to escape the moral contamination that might accompany
continued cohabitation with a guilty spouse. In a world where marital unity
meant something, it was important that divorce exist. At the same time, it was
still more important that divorce not be understood as a form of voluntary exit
available to all married couples. It was, wrote Schouler, because marriage was
‘not on the footing of ordinary contracts, that husband and wife’ could not, ‘on
principle, compromise, arbitrate, or modify their relationship at pleasure.’ Or end
it. 4
Kansas law did not care whether Mary Elizabeth and Charles Lease had mutually agreed to end
their marriage, nor did the law care whether either individual was “happy.” What mattered was
whether one of them had so violated their status as husband or wife that the social institution of
their marriage was irreparably destroyed. Someone had to be guilty.
4 Hendrik Hartog, Man and Wife in America: A History, (Cambridge: Harvard University Press, 2000), 75-76.
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