connected with the religious belief or persuasion of both or either of the parties thereto, in whatever form, by whatever person, or in whatever place it may have been solemnised. It must be remembered that none of the marriage acts(b) here mentioned affect the royal family, whose marriages are regulated by the common law as modified by the Royal Marriage Act(c), nor to marriages taking place abroad (d), respecting which there has been some recent legislation. (II.) How a marriage may be dissolved. culo matri monii. II. We have next to consider the manner in which a marriage may be dissolved; and this is either by death, or divorce.(147) Before the year 1857, when the Divorce Act was passed, divorce as well as marriage was within the cognisance of the ecclesiastical courts. There were two kinds of divorce, the one total, the other partial; the one a Divorce a vin- vinculo matrimonii, the other, a mensa et thoro. The total divorce, a vinculo matrimonii, was always for some one of the canonical causes of impediment before mentioned; and those existing before the marriage, as is always the case in consanguinity or affinity; not supervenient, or arising afterwards, as may be the case in corporal imbecility. For in a case of total divorce the marriage was declared null, as having been absolutely unlawful ab initio; and the parties were therefore separated pro salute animarum: for which reason, as was before observed, no divorce could be obtained, but during the life of the *parties(e). The issue of such marriage as was thus entirely dis[ *541] solved, were bastards(f). Divorce mensa et thoro was when the marriage had been just and lawful að initio, and therefore the law was tender of dissolving it; but for some supervenient cause, it became improper or impossible for the parties to live together: as in case of cruelty, or adultery in either of the parties. For the canon law, which the common law followed in this case, deemed so highly and with such mysterious reverence of the nuptial tie, that it Divorce a mensâ et thoro. (b) 26 Geo. 2, c. 33, s. 17; 4 Geo. 4, c. 76, s. marriage abroad of a person who is here under 30; 6 & 7 Will. 4, c. 85, s. 45. attainder for treason may be valid. Kynnaird v. Leslie, L R. 1 C. P. 389. (c) 12 Geo. 3, c. 11, ante p. 267. (d) The laws relating to marriages in Scotland and Ireland differ in many respects from those which have force in England. The (e) Ante, p. 525. (147) Ordinarily, divorces are sought upon grounds, or for causes arising after marriage; but there are cases in which the cause may have existed before and at the time of the marriage, as in the case of incurable impotency. J. G. v. H. G., 33 Md. 401; Bascomb v. Bascomb, 25 N. H. 267; Keith v. Keith, Wright, 518; Ferris v. Ferris, 8 Conn. 166. Impotency arising from idiocy is no cause for a divorce in Vermont. Norton v. Norton, 2 Aiken, 188; Greenstreet v. Cumyns, 2 Phill. 10. See Devanbagh v. Devanbagh, 5 Paige, 554; 6 id. 175; E. B. v. E. C. B., 28 Barb. 299; 8 Abb. Pr. 44; Newell v. Newell, 9 Paige, 25. It may be stated as a general rule that adultery is a good ground for an absolute divorce in all the states of the Union except South Carolina. See Hair v. Hair, 10 Rich. Eq. 172. The statutes of the different states relating to the subject must necessarily differ in matters of detail, and can be learned by examining them. The decisions upon this branch of the law are very numerous, and a citation of them would serve no useful purpose in this place. To the general rule there may be one apparent exception; and in several cases it has been held that adultery committed by an insane wife did not furnish ground for a divorce. Nichols v. Nichols, 31 Vt. 328; Broadstreet v. Broadstreet, 7 Mass. 473; Wray v. Wray, 19 Ala. 522. The contrary was held in Matchin v. Matchin, 6 Penn. St. (6 Barr.) 332. would not allow it to be unloosed for any cause whatsoever, that arose after the union was made. And this was said to be built on the divine revealed law; though that expressly assigns incontinence as a cause, and indeed the only cause, why a man may put away his wife and marry another(g). But in England adultery was only a cause of separation from bed and board(h): for which the best reason that could be given was the supposition, that if divorces were allowed to depend upon a matter within the power of either of the parties, they would probably be extremely frequent; as was the case when divorces were allowed for canonical disabilities, on the mere confession of the parties(i). However, divorces a vinculo matrimonii, for adultery were for many years frequently granted by act of parliament:(148) but only upon strict proof of the adultery; and, in general, only after a sentence of divorce a mensa et thoro, by the ecclesiastical court, and, (if the husband were the petitioner), after verdict against the adulterer in a trial at law(k). From such a state of the law it practically resulted that divorces on what [ *542] were deemed sufficient grounds, *though always obtainable by the rich, were denied for the most part to the poor. This great injustice has been remedied by the establishment of the Court for Divorce and Matrimonial Causes, commonly called the Divorce Court(?), which now grants relief in two ways, viz.: by divorce, or dissolution of marriage, which corresponds to the old divorce a vinculo matrimonii, and by a judicial separation which corresponds to the divorce a mensa et thoro. Divorce. Divorce or dissolution of marriage(m), which is a complete severance of the marriage tie, can be obtained by the husband on the ground of his wife's adultery.(149) It can be obtained by the wife on the grounds that since the celebration of the marriage, her husband has been guilty of incestuous adultery(n), or of bigamy with adultery, or of rape, or an unnatural crime, or of adultery coupled with such cruelty(0) as would formerly have entitled her to a divorce a mensâ et thoro or of adultery coupled with desertion, without reasonable excuse, for two years or upwards. A judicial separation which has all the effects attendant on a divorce a mensa (n) Incestuous adultery means adultery committed by the husband with a woman whom if his wife were dead he could not marry, by reason of her being within the prohibited degrees of consanguinity or affinity, 20 & 21 Vict. c. 85, s. 27. (0) What conduct amounts to cruelty may be gathered from the following cases. Evans v. Evans, 1 Hagg. Con. Rep. 35; Curtis v. Curtis, 1 Swa. & Tr. 193; Marsh v. Marsh, Ib. 312; Milner v. Milner, 31 L. J. P. M. & A. 159; Hudson v. Hudson, 3 Swa. & Tr. 314. (148) Divorces have been granted by some of the state legislatures, though this has not been much practiced. And in some cases the state courts have denied the power of the legislature to grant divorces. Brigham v. Miller, 17 Ohio, 445; Clark v. Clark, 10 N. H. 380; Ponder v. Graham, 4 Flor. 23; Bryson v. Bryson, 17 Mo. 590. In many of the state constitutions there is a clause prohibiting the legislature from granting divorces, and conferring the power upon the courts. And the application for divorces are now made to the courts under the statutes and decisions of the several states. (149) See note 147. et thoro under the former law(p) may be obtained by either party on the ground of adultery, or cruelty (2), or desertion without cause for two years or upwards(r).(150) Judicial separation. (p) 20 & 21 Vict. c. 85, s. 7. (q) See note (0), supra. (r) 20 & 21 Vict. c. 85, s. 16. (150) The power of the courts to grant limited divorces, or separation from bed and board, is well settled in this country. The grounds which will authorize such a decree are, in many cases declared by statute, and they differ in the several states as to minor details. Cruel and inhuman treatment, and abandonment, are frequent grounds of complaint and of actions. The general rule is, that to constitute legal cruelty which will authorize a divorce or separation, there must be either actual violence committed, attended with danger to life, limb or health, or there must be a reasonable apprehension of such violence. Shaw v. Shaw, 17 Conn. 189; Sharman v. Sharman, 18 Tex. 521; Mahone v. Mahone, 19 Cal. 627; Finley v. Finley, 9 Dana (Ky.) 52; Harman v. Harman, 16 Ill. 85; Beebe v. Beebe, 10 Iowa, 133; Doyle v. Doyle, 36 Mo. 545; Hughes v. Hughes, 44 Ala. 698; Cole v. Cole, 23 Iowa, 433; Cook v. Cook, 3 Stockt. (N. J.) 195; Richards v. Richards, 37 Penn. St. 225. Ordinarily, a single act of cruelty, unless it is a very aggravated one, will not authorize a divorce; and usually the acts must be persistent, unless from their nature it is to be presumed that they will be continued. Ib. A statute which provides that it is ground of divorce if the husband has offered such indignities to his wife's person as to render her condition intolerable and life burdensome, does not require that such indignities should be such as to endanger her life. May v. May, 62 Penn. St. 206; see, also, Davies v. Davies, 55 Barb. 130; 37 How. Pr. 45; Payne v. Payne, 4 Hum. 500. Where a husband made gross and unfounded charges of adultery against his wife, and attempted to induce a negro servant to criminate her in adultery with such servant, the court granted a divorce from bed and board. Thomas v. Thomas, 2 Cold. (Tenn.) 123. If a husband whips his wife, or threatens or attempts to commit adultery, or if he curses and abuses her, or uses insulting and opprobrious language, he is guilty of cruel treatment which will authorize a divorce. Gholston v. Gholston, 31 Ga. 625. So where a husband was in the habit of using vile and abusive language towards his wife, causing her much mental suffering and fits of illness, threatening permanent injury to her health, it was held a sufficient ground for a divorce for cruelty. Powelson v. Powelson, 22 Cal. 358. Groundless charges of adulterous intercourse made by the husband against his wife is an act of gross cruelty. Pinkard v. Pinkard, 14 Tex. 356. So of studied vexations and deliberate insults and provocations. Sheffield v. Sheffield, 3 id. 79. Austerity of temper, sallies of passion or abusive language do not constitute such extreme and repeated cruelty as to authorize a divorce under the statute. Turbitt v. Turbitt, 21 Ill. 438. Mere indignities by a husband to the moral character or reputation of his wife, are not sufficient to authorize a divorce. Cheatham v. Cheatham, 10 Mo. 296. Vulgar, obscene, and harsh language, with epithets suited to deeply wound the feelings and excite the passions, but not accompanied with any act or menace indicating violence to the person, does not constitute such cruelty. Shaw v. Shaw, 17 Conn. 189. A divorce will not be granted on the ground of extreme cruelty, where it appears that the party complaining willfully provoked the violence or misconduct complained of, unless such violence was extremely out of proportion to the provocation. Reed v. Reed, 4 Nev. 395; David v. David, 27 Ala. 222; Skinner v. Skinner, 5 Wis. 449; Poor v. Poor, 8 N. H. 307. See, contra, Eidenmuller v. Eidenmuller, 37 Cal. 364. Where a wife treats her husband in such a manner as to render his "condition intolerable and his life burdensome," it is a ground of divorce under the Pennsylvania statutes. Jones v. Jones, 66 Penn. St. 494. So violent and outrageous conduct on the part of the wife toward the husband, rendering the proper discharge of the duties of married life impossible, is, in Maryland, sufficient ground for a divorce from bed and board. Lynch v. Lynch, 33 Md. 328; Kenemer v. Kenemer, 26 Ind. 330; Beebe v. Beebe, 10 Iowa, 133; Gholston v. Gholston, 31 Ga. 625; McNamara v. McNamara, 2 Hilt. (N. Y. C. P.) 547; 8 Abb. 18; Perry v. Perry, 2 Paige, 501; White v. White, 1 S. & T. 591; 6 Jur. N. S. 28; 1 L. T. N. S. 197; Pritchard v. [ *543] It is enacted that a sentence of divorce shall in no case *be granted if the petitioner has been accessory to, or connived at, or condoned the adultery of the other party, or if the petition has been presented in collu Pritchard, 3 S. & T. 523; 10 Jur. N. S. 830; 10 L. T. N. S. 789; Forth v. Forth, 15 W. R. 1091; 16 L. T. N. S. 574; 36 L. J. Mat. Cas. 122. Personal abuse or indignities offered by a wife to her husband will not justify him in turning her out of doors; he must show such cruel or barbarous treatment as render his condition intolerable and life burdensome, or endanger his life; such as would entitle him to a divorce. Gordon v. Gordon, 48 Penn. St. 226. A single act of drunkenness and indecency of a wife is not such an indignity as will render the condition of the husband intolerable. Kempf v. Kempf, 34 Mo. 211. Desertion or abandonment by either husband or wife is one of the grounds for a divorce. But, to constitute this offense, the desertion or abandonment must be intentional, or willful and malicious, with an intent to renounce and disregard the marriage relation. The length of time which is required to justify a divorce is not uniform in the several states. What acts constitute desertion will be found reported in numerous cases, of which but a few can be here given by way of illustration of the general rule. Abandonment must be the deliberate act of the party complained against, and done with the intent that the marriage should no longer exist; but when the abandonment of the conjugal relation is mutual, and equally deliberate and final on both sides, no divorce a vinculo can be granted to either party. Lynch v. Lynch, 33 Md. 328. It is ground for a divorce where a husband has intentionally, and against his wife's consent, for five consecutive years, abandoned all matrimonial intercourse and companionship with her, and denied her the protection of his home, even though he has during that time regularly contributed toward supporting the wife and children. Magrath v. Magrath, 103 Mass. 577. A husband is not justified in deserting his wife because she refuses him marital inter course. Reid v. Reid, 21 N. J. Eq. 331. Refusal of sexual intercourse for five years consecutively, although not justified by considerations of health, is not "desertion." Southwick v. Southwick, 97 Mass. 327. A wife who willfully and maliciously declines or refuses to accompany her husband to a new house, and without just or reasonable cause therefor, is guilty of desertion. Angier v. Angier, 7 Phil. (Penn.) 305; Cutler v. Cutler, 2 Brews. (Penn.) 511; see Walker v. Leighton, 31 N. H. 111, 116; Hardenburgh v. Hardenburgh, 14 Cal. 654. But the husband must show that the wife unreasonably refused to remove from one state to another, at his place of residence; and if the fatigues and hardships of such a journey are very great, he must show that she was able to endure them, or a divorce will be refused. Gleason v. Gleason, 4 Wis. 64, 66. A wife who, in good faith, refuses to live with her husband in a particular locality, "near his relations," which he persisted in doing, will not be considered guilty of desertion if she believes she could not live happily there, as the desertion would not in that case be willful. Powell v. Powell, 29 Vt. 148, 150. So the refusal of a wife to remove with her husband to a foreign country to reside, is not a willful desertion. Bishop v. Bishop, 30 Penn. St. 412. To constitute desertion on the part of the wife, she must absent herself from her husband of her own accord, without his consent and against his will. Moores v. Moores, 16 N. J. Eq. (1 C. E. Green) 275. It is no ground for desertion or for a divorce by the wife that the husband's marital intercourse with her is very frequent, if she has no peculiar debility or physical infirmity, and there is no violence or compulsion on the part of the husband. Moores v. Moores, 16 N. J. Eq. (1 C. E. Green) 275; Shaw v. Shaw, 17 Conn. 189. A divorce will not be decreed upon proof that the husband went away and lived apart from his wife. A mere separation cannot be considered a desertion within the meaning of the statute. Cook v. Cook, 13 N. J. Eq. (2 Beas.) 263. A failure by a husband to supply his wife with such necessaries and comforts as are within his reach, and compelling her by cruelty to quit him, are as much an abandonment as actual desertion on his part. Levering v. Levering, 16 Md. 213. sion with either respondent(s). It is also entirely in the discretion of the court whether it will pronounce a decree or not(t), if the petitioner during the marriage has been guilty of adultery, or unreasonable delay in presenting the petition, or cruelty to the other party to the marriage, or of having deserted or wilfully separated himself or herself from the other party before the adultery complained of, and without reasonable excuse, or of such wilful neglect or misconduct as has conduced to the adultery. III. Having thus shown how a marriage may be made, or dissolved, we come lastly to speak of the legal consequences of such making, or dissolution. (III.) Legal consequences of marriage and divorce. And first, as to the consequences of marriage:- By marriage, the husband and wife become one person in law(u):(151) that is, the very being or legal existence of the woman is in many (8) 20 & 21 Vict. c. 85, 31. (t) Ibid. (u) Co. Litt. 112. (151) In the United States the common-law disability of a married woman to make contracts very generally prevails where no statute has changed the rule. Whitworth v. Carter. 43 Miss. 61; O'Daily v. Morris, 31 Ind. 111; Smith v. Allen, 1 Lans. 101; Bauer v. Bauer, 40 Mo. 61; Pond v. Carpenter, 12 Minn. 430; Jones v. Crosthwaite, 17 Iowa, 393; Shannon v. Canney, 44 N. H. 592; Glover v. Alcott, 11 Mich. 470; Ayer v. Warren, 47 Me. 217; Griffith v. Clark, 18 Md. 457; Nunally v. White, 3 Metc. (Ky.) 584; Luning v. Brady, 10 Cal. 265. Where a wife has a separate estate, she has power to make contracts in relation to that, which a court of equity will enforce in a proper case, without the aid of any statute for that purpose. Yale v. Dederer, 18 N. Y. (4 Smith) 265; Pemberton v. Johnson, 46 Mo. 342; Cheever v. Wilson, 9 Wall. 108; Lindley v. Cross, 31 Ind. 106; Hackett v. Metcalf, 6 Bush (Ky.) 352; Ballin v. Dillaye, 37 N. Y. (10 Tiff.) 35; Harrison v. Stewart, 18 N. J. Eq. (3 C. E. Green) 451; Penn v. Whitehead, 17 Gratt. (Va.) 503; Dallas v. Heard, 32 Ga. 604; Beals v. Cobb, 51 Me. 348; Tracy v. Booth, 37 Vt. 78; Todd v. Lee, 16 Wis. 480; Miller v. Newton, 23 Cal. 554. In several of the states of the Union, statutes have been enacted for the protection of the rights of married women. And the general character of these statutes is to give to a married woman all the rights of property which she might have if unmarried, with some slight exceptions to the general rule. Wherever such statutes exist, the courts have given full effect to them by securing the wife's rights to her property, and by enforcing her contracts made in relation thereto. It is generally held that such statutes do not enlarge the general powers of the wife as to all contracts, but only as to such as affect her property or estate The practical effect of this change in the law has been to enable married women to make many contracts which courts of law will enforce, when such a rule did not formerly exist. The cases and the illustrations of these principles are very numerous, and but few of them can be noticed in this place. The remedy against a married woman, in equity, to charge her separate estate for her contracts, is superseded by the statutory provision authorizing a judgment against her personally. Ainsley v. Mead, 3 Lans. 116. She may make bargains, carry on any trade or business, and perform labor and services on her own separate account, and for her own exclusive benefit, the same as though she were unmarried; and the earnings and profits belong to her exclusively, and are her sole and separate estate. She may also sue and be sued upon any and all bargains, obligations and liabilities made or incurred in her business, the same as though she were sole. And an action is brought, prosecuted and enforced against her in the same manner that it would be if she were unmarried. Foster v. Conger, 61 Barb. 145; S. C., 42 How. Pr. 176. She may bind her separate estate, by contract, so as to charge it with a mechanic's lien. Tucker v. Gest, 46 Mo. 339. She may enter into an agreement to submit to arbitration, and to abide by the award, a question of damages for the flowage of her lands. Duren v. Getchell, 55 Me. 241; Palmer v. Davis, 28 N. Y. (1 Tiff.) VOL. I.-46 |