From Gloth v. Gloth, 154 Va. 511, 153 S.E. 879 (1930)
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In England, prior to the passage of the matrimonial causes act of 1857, no court had jurisdiction to grant a divorce a vinculo dissolving the bonds of matrimony. This power was vested solely in the Parliament; and the act of Parliament in each case became the law thereof, both as to grounds for granting the divorce and with reference to alimony. The ecclesiastical courts had, however, long exercised the power and authority to declare null and void by definitive sentence a marriage which was void ab initio for cause existing at the time of the marriage. This was not, however, the granting of a divorce a vinculo (i.e. the dissolution of the marriage bond), but a definitive sentence declaring that no marriage had ever in fact existed. In such cases the question of alimony to the wife could not arise, as at common law a right to alimony could only arise out of [Page 539] the marital relation, which in such cases was adjudged never to have existed.
On the other hand, from time immemorial the ecclesiastical courts had and exercised the jurisdiction to grant divorce a mensa et thoro for adultery and cruelty, and as an incident thereto to award alimony to the wife, who though judicially separated from him still remained his wife. The jurisdiction to grant divorces a mensa et thoro was vested exclusively in the ecclesiastical courts, and neither the courts of common law nor the courts of chancery had such jurisdiction.
Though the law relating to divorce a mensa et thoro as administered by the ecclesiastical courts of England was a part of the common law of the land, and became a part of the common law of Virginia, it remained dormant for many years, because neither during the colonial period nor after the revolution were there any ecclesiastical courts in Virginia, nor was there any statute authorizing the courts of common law or chancery to exercise jurisdiction to administer the law of divorce, which under the common law was vested exclusively in the ecclesiastical courts.
Prior to March 1, 1819, no court in Virginia had jurisdiction either to enter a definitive sentence declaring marriage void ab initio, or to grant divorce either a vinculo or a mensa et thoro. By an act passed March 1, 1819, the superior courts of law were empowered to enter definitive sentences declaring null incestuous marriages (but no others), and to punish the parties. (Rev. Code Virginia 1819, chap. 106, section 18.) It was not, however, until the act of February 17, 1827 (Acts 1826-27, chapter 23), that courts in Virginia were empowered to grant a divorce a mensa et thoro, and not until the act of March 18, 1848 (Acts 1847-48, chapter 122), that [Page 540] the courts were authorized to grant a divorce a vinculo, and then only for the one cause of adultery.
In Almond v. Almond, 4 Rand. (25 Va.) 662, 15 Am. Dec. 781, decided July, 1826, which was a case in which the court held that in Virginia a court of chancery had the inherent power to award alimony to a wife in a proper case when there had been no divorce and no suit for divorce was pending or could be instituted, the court said:
"I find no case with us, in which the subject has been before this court. Having no ecclesiastical tribunal, the powers of that court seem to have been considered as vesting originally in the old general court. From thence, some of them have been distributed to other courts, as they were branched out. The power over the probate of wills, executors and administrators, and distributions, etc., were given to the district, superior, county and corporation courts. I know of no law which has given to any court the trial of matrimonial causes, except so far as relates to incestuous marriages; as to which, a power is given to the court of chancery to annul them. Judge Tucker, in his Blackstone, 3rd volume 94, says: "With respect to suits for alimony after a divorce a mensa et thoro, as there is no court in Virginia which possesses jurisdiction in such cases, so until there is such court, there can be no room for suits of this nature; unless, perhaps, the high court of chancery should sustain them as incidental to its equitable jurisdiction."
The next year the act of February 17, 1827, the first act passed in Virginia authorizing any court to grant divorce, was enacted. Acts 1826-1827, chapter 23, page 21. The parts of this act here material are set forth in the foot note. 1 [Page 541] This act is neither the enactment of a new code law relating to divorce nor the codification of the common law of divorce. It conferred jurisdiction on the superior courts of chancery to exercise the jurisdiction exercised by the ecclesiastical courts to declare null marriages void ab initio and to grant divorces a mensa et thoro in accordance with the law of the land, which remained unchanged except in so far as it was changed by express enactment or necessary implication; and so far as the act relates to provisions for the maintenance of the parties there is no change made in the common (ecclesiastical) law either by express enactment or necessary implication.
Though it provides that the procedure in divorce cases shall be the same as that in other suits in chancery, which in some respects differed from the procedure of the ecclesiastical courts, this act does not provide either by express provisions or necessary implications that the substantive law of divorce as it existed at common law is thereby supplanted. On the contrary, it [Page 542] is plain that the jurisdiction thereby conferred upon the courts was to administer the common law of divorce a mensa et thoro as it existed, with only such changes therein as were made by express provisions of the statute or by necessary implication therefrom. The existence and continuation in force of the common law of divorce as established in the ecclesiastical courts of England is expressly recognized in section 3 of the act itself, where it is provided that "In granting divorces a mensa et thoro for causes which justify such divorces by the principles of common law" the courts shall have the power to award alimony, etc.
Though there is no provision in this act for the defenses of condonation and recrimination which existed at common law, there can be no doubt that the common law with reference to these defenses continued in effect unrepealed by the act. So also, though there is no provision in the act empowering the court, after a decree for divorce a mensa et thoro has been entered, thereafter to change or modify, to meet conditions subsequently arising, the provisions of such decree as to the support and maintenance of either the wife or the infant children of the parties, the common law relating to the power of a court having jurisdiction in divorce cases to exercise a continuing jurisdiction over its provisions for the support and maintenance of both the wife and the minor children, continued in effect. The provision of the common law was not repealed by the failure of the act to expressly provide therefor.
If there could be any question about the fact that the observations above made with reference to the act of 1827 are correct, the next act upon this subject, the act of March 17, 1841 (Acts 1840-41, chapter 71, page 78), makes it unmistakably clear that the act contemplates that the jurisdiction given by that act to the [Page 543] superior courts of law and chancery was to be exercised in accordance with the principles of the ecclesiastical law, and that the principles of the substantive law of divorce as applied by the ecclesiastical courts of England was the law of the land in Virginia.
The material portions of the act of March 17, 1841, which repeal the act of 1827 only in so far as the same comes within the purview of the act of 1841, are set forth in the foot note. 2
The first act empowering a court in Virginia to grant a divorce a vinculo for a cause arising after the marriage was passed in 1848. Until then this power remained vested solely in the General Assembly, as it had been and then was in England vested in the Parliament. But by act passed March 18, 1848 (Acts 1847-48, chapter 122, page 165), which recites that the applications [Page 544] to the legislature for divorces a vinculo are becoming frequent and ought, so far as this legislature can do it, be referred to judicial tribunals, the General Assembly conferred jurisdiction upon the circuit superior courts of law and chancery to grant a divorce a vinculo for adultery, but for adultery only.
As there was existent no common (ecclesiastical) law relating to divorces a vinculo (as distinguished from definitive sentences of annullment) this act contains much more substantive law than do the acts relating to divorce a mensa et thoro.
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