SELFISH INTENTIONS - K-REx - Kansas State University

nineteenth century America, divorce was not private. In the eyes of judges and legislators
divorce was “a public process available only for public reasons.” 46 Hartog further explained:
For judges of the early nineteenth century, divorce was a species of public law, a
public remedy for a private wrong. If a husband and wife agreed to divorce
because they, as private individuals, wanted a divorce, their agreement, all by
itself, was reason enough to deny the divorce. …A couple would be divorced
because one or the other had so violated a public and legislatively defined norm
that it became important for the moral identity of the innocent spouse to be freed
from identity, or unity, with the other. The ‘innocent’ party ‘prosecuted’ a
divorce. The guilty party had committed a ‘crime.’” 47
The judges and legislators had a vested interest in maintaining marriages; however, they
understood that in some circumstances divorce might be the best option for the public. Divorce
laws were not intended to allow the couple to escape their identities formed through marriage,
but rather to punish the spouse who violated the union with their guilty conduct. Divorce laws
were present to help the “innocent” spouse escape any moral contamination that would occur if
they continued to live with the guilty spouse. As Hartog concludes his explanation of nineteenth
century divorce, “In a world where marital unity meant something, it was important 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.” 48 The liberalization of divorce law posits
marriage as a contract between two individuals, but once those two individuals were married,
they were no longer simply two individuals. Once married, they represented status positions in a
union that the law recognized as something in particular that had to be preserved. Divorce was
46 Ibid., 70.
47 Ibid.
48 Ibid., 76.
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