A Note upon Migratory Divorce of South Carolinians

Abstract

In the study of migratory divorce South Carolina is an excellent in point, since she is now the only state that does not permit divorce for any cause. All of her 4,085 divorcees recorded by the census of I930 are, consequently, in broad sense, migratory. Many of these have left the state expressly for the purpose of being freed from matrimony, and others have moved into the state after having had their bonds severed elsewhere. In South Carolina's entire history-whether as colony or state-there has been strong disapproval of the legal dissolution of the family relationship. In 1704, it is true, one George Frost did obtain permission of the legislative Commons to bring in bill for securing divorce, his wife to appear to defend herself, but no further record of the suit has been found. Possibly death or reconciliation ended the controversy.' For many years after there seems to have been not even an attempt at divorce, and South Carolinians were so strongly opposed to the practice that in the case of McCarty v. McCarty, first tried in 1847, Judge O'Neal felt justified in holding that by a sort of common law of our own . . . the marriage contract in this state is regarded as indissoluble by human means.2 During Reconstruction, however, the carpetbaggers' constitution, adopted in i868, provided in section 5 of Article XIV that divorces from the bonds of matrimony shall not be allowed but by the judgment of Court, as shall be prescribed by law. In accordance with this provision the legislature in 1872 passed an act permitting divorce on the grounds of adultery or of wilful desertion for two years, caused by extreme cruelty or non-support. Only few decrees were granted under this act before it was repealed in I878 after the Red Shirts under General Wade Hampton had,obtained control of the state government.3 Any doubt as to the legal status of divorce was ended by the constitutional convention of 1895, which placed in the fundamental law of the state clause directing