Mike Watson, Author
Ky Divorce History, Part 1
Introduction
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. This was achieved 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 confront divorce directly. This was partly due to pressures from ministers. It was also partly due to a lack of vision, not recognizing the need for such a 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. They needed the bill to be drafted. A member of the Assembly had to introduce the bill.
They had to show arguments to prove 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.
Acceptable Reasons
The only acceptable reason for divorce at the time was adultery. Some divorces were also granted upon the proven charges of cruelty or abandonment. Significant proof had to be gathered and witnesses deposed before any actions were be taken. Only after such evidence was obtained would a legislator be approached to introduce the bill. The more political, or financial, influence that was mustered, the more the divorce would materialize.
Ky Divorce History, Part 1
1809 Act
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 several years there were two avenues to be taken in obtaining a divorce.(
1) by legislative act, if both parties requested it.
(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.
Late 1840 Actions
The issue of legislative marriage dissolution came to a head in the late 1840. When the Legislature convened at Frankfort, the town would fill up with people. They sought a special act to end the matrimonial bond. When the General Assembly met in 1848, one legislator described the session.
He said it was more of a ‘court of divorcement’ than a meeting of lawmakers. The town, normally filled to near-overflowing during annual sessions, was more crowded. Women, men, and attorneys sought special acts 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 next October of 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:
Changes Enacted
‘The General Assembly shall have no power to grant divorce. It shall not change the names of individuals. It can’t direct the sales of estates belonging to infants or other persons laboring under legal disabilities by special legislation. Instead, by general laws, it shall confer such powers on the courts of justice.’
Ky Divorce History, Part 1
With the Kentucky Constitutional Convention of 1849, the jurisdiction of the Legislature to grant divorces was removed. Henceforth, all such actions would be within the jurisdiction of the Circuit Court. In 1972 the designation “divorce” was changed to “dissolution of marriage.”
Michael C. Watson, 2015
Ky Divorce History
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