Definition
Cui ante divortium (Latin: "to whom before divorce") is an obsolete writ of entry from medieval English law. It lay in favor of a woman who had been divorced from her husband, allowing her to recover lands and tenements — held in fee-simple, in tail, or for life — that her husband had alienated to a third party during the marriage without her consent. The action ran against the current holder of the land, not the husband directly.
The writ derived its name from the operative words of the original Latin form: cui ipsa ante divortium inter eos celebratum contradicere non potuit — "whom she, before the divorce celebrated between them, could not gainsay." The inability to object during the marriage was the legal premise of the claim: because a wife under coverture had no independent legal voice to block her husband's alienation, the law provided a post-divorce remedy to restore her property.
Common Confusion
Divorce in the context of this writ does not mean dissolution of marriage in the modern sense. In medieval and early common law usage, "divorce" (divortium) encompassed both what we now call divorce (a vinculo matrimonii, dissolving the marriage bond entirely) and separation (a mensa et thoro, separation from bed and board). Sources are not always explicit about which form triggered the writ, and researchers should not assume the modern meaning applies. See the HISTORICAL DICTIONARY SUPPORT section below.
Why It Matters in Research
This term appears almost exclusively in historical sources dealing with real property recovery and the disabilities of coverture. Researchers will encounter it in treatises on the old forms of action, particularly writs of entry, which were the procedural mechanism for recovering seisin of land before the development of ejectment. It belongs to a cluster of writs — including cui in vita and cui ante divortium — that specifically addressed a wife's limited ability to act during marriage.
The key research trap is the meaning of "divorce." Texts predating the 19th-century development of statutory divorce law use divortium in the broader canonical-law sense. A researcher reading a source that grants this writ upon "divorce" should investigate whether the underlying separation was a vinculo or a mensa et thoro, as that distinction could affect the scope of property recovery being described.
This writ is also a lens into the doctrine of coverture. The premise of cui ante divortium — that the wife could not gainsay the alienation — is a direct expression of the legal fiction that husband and wife were one person in law, and that the husband controlled real property interests during the marriage. Researchers tracing the erosion of coverture or the development of married women's property rights will find this writ contextually significant, even though it was remedial rather than preventive.
The writ had become archaic well before the major 19th-century property reforms (such as the Married Women's Property Acts in England and their American counterparts) rendered it entirely obsolete. It is unlikely to appear in any active litigation context; its relevance is purely historical and doctrinal.
Historical Dictionary Support
All three source dictionaries agree on the core definition and the function of the writ. Black's (both editions) and Burrill's align on the essential elements: a divorced woman, a husband's alienation during marriage, the wife's inability to object at the time, and a recovery action against the alienee. Burrill's is the most informative of the three, preserving more of the Latin writ language and making explicit that the action was a writ of entry — a specific procedural classification that the Black's editions gesture toward but do not emphasize.
None of the three sources engages the question of which form of divorce the writ required, nor do they situate it clearly within the broader system of writs of entry or explain its relationship to the contemporaneous writ cui in vita (which addressed a different but related scenario: a wife's recovery of lands alienated by her husband during the marriage, after his death). This gap is significant for researchers trying to map the full landscape of a wife's common-law property remedies. The Register of Originals (Reg. Orig.), cited by both Black's editions, is the primary historical source for the writ's formal language.
Jurisdictional Note
This writ is a creature of English common law and has no living application in any jurisdiction. It did not meaningfully transplant into American practice, where the general common law writ system was replaced by reformed procedure in the 19th century. References in American sources are historical or comparative only.