Early Divorce in Kentucky

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The Divorce in Kentucky Part 1

Early Divorce in Kentucky

Early Divorce in Kentucky

Cartoon parodying the circus-like divorce proceedings of Anna Gould (an American heiress and socialite) and Boni de Castellanein 1906 

Early Divorce in Kentucky

Divorce action was not unknown in early Kentucky, but it was infrequent. The Commonwealth stipulated that the Legislature, or General Assembly, was the only route to dissolution of marriage, through a special law for that specific purpose. Many early states faced the same burden, Kentucky taking her direction from mother-state Virginia. The original Kentucky constitution did not address divorce directly, partly due to pressures from ministers, and partly due to lack of vision, not recognizing the need for such measure.

Certainly, divorce was rare in early Kentucky, but the main reason was the difficulty in obtaining one. The concerned parties had to hire an attorney to apply for an act of the Legislature; the bill had to be drafted, a member of the Assembly had to introduce the bill and arguments had to be presented, showing the true need for divorce. Generally the act was passed, for if the bill was introduced, the action was nearly assured. A long and arduous process.

Reasons for Divorce

The only acceptable reason for divorce at the time was adultery. Some divorces were also granted upon the proven charges of cruelty or abandonment. Substantial proof had to be gathered and witnesses deposed before any actions could be taken. Only after such evidences could be obtained could a legislator be approached to introduce the bill. The more political, or financial, influence that could be mustered, the more likely the divorce would materialize.

An Act was passed on 31 January 1809 that gave the Circuit Court authority to grant divorces on certain grounds. The Kentucky Court of Appeals soon ruled that Circuit Courts had no jurisdiction except by Statute. So, for a number of years there were two avenues to be taken in obtaining a divorce—1) by legislative act, if both parties requested it; or 2) by filing a civil suit in the plaintiff’s Circuit Court. In some cases, the Legislature would refer a case for divorce to Circuit Court for legal expedition.

1840 Convention

The issue of legislative marriage dissolution came to a head in the late 1840s when, with the convening of the Legislature at Frankfort, the town would fill up with those seeking a special act to end the matrimonial bond. When the General Assembly met in 1848, one legislator described the session as more of a ‘court of divorcement’ than a meeting of lawmakers. The town, normally filled to near-overflowing during annual sessions, was more crowded due to those women, men and attorneys seeking special act for divorce. Ultimately, over 300 divorce acts were heard by the 1848 lawmakers.

The tide was stemmed as a result of a change in Kentucky’s Constitution. A convention to amend or re-adopt the Constitution was convened in January 1849. The following October, 1849, delegates met at Frankfort to reorder the general laws of the land. A change was made in the new Constitution that took the ‘act of divorce’ from the hands of the General Assembly:

‘The General Assembly shall have no power to grant divorce, to change the names of individuals, or direct the sales of estates belonging to infants, or other persons laboring under legal disabilities, by special legislation; but by general laws shall confer such powers on the courts of justice.’

So, with the Kentucky Constitutional Convention of 1849, the jurisdiction of the Legislature to grant divorces was taken away; all such actions would henceforth be within the jurisdiction of the Circuit Court. In 1972 the designation “divorce” was changed to “dissolution of marriage.”

Michael C. Watson, 2015

Early Divorce in Kentucky

One thought on “Early Divorce in Kentucky

  1. Sad for me. My grandfather divorced my grandmother to marry his deceased brother’s wife. It is said that he got into an argument with his brother .and stabbed him. Whether there was a love connect is not known. Years later he hung himself or maybe the divorced wife hung him. Either way I would love to see the divorce actions and what they said. The divorce was in the 18869”s or 70’s Unfortunately the court house burned in Hart County so they are not available. Any suggestions?

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