The consent of parents or guardians to the marriage of minors is required by the Roman law, the marriage acts of England, and by the statutes of some of our States; but not by common law, nor in England until the Statute of 26 Geo. II. c. 33. The English statute makes the marriage of minors, without such consent, absolutely void. In this country that would depend upon the statutes of the several States. Generally, if not universally, the marriage would be held valid, although the person celebrating it might be punishable. (j)

* 83

It has been held in England, that a marriage, not lawfully celebrated, by reason of the fraud of one of the parties, shall yet be held valid in favor of the innocent party. As in case of a

misnomer of the wife by the husband's fraud. (k) So where the husband falsely imposed upon the wife a forged or unauthorized license, and a pretended clergyman. (1) In the statutes of some of the States there are provisions to the same effect.

The operation of the lex loci upon marriage and the rights of the married parties, has given rise to some questions which we shall consider when we treat of the Law of Place.

SECTION V.

DIVORCE.

Neither the courts of common law nor the equity courts of England, decree divorce. Almost all questions of marriage were, until recently, decided by the spiritual courts, having been originally under the cognizance and jurisdiction of the bishops. The spiritual courts sometimes decreed that a 84

*

(7) It has been so decided in Massachusetts. Parton v. Hervey, 1 Gray, 119. (k) King". Wroxton, 4 B. & Ad. 640. It is held in this case that a marriage is not void because the banns were published under false names, unless both parties were privy to such false publication. See also King v. Billingshurst, 3 M. & Sel. 250. In a note to this case are given at length Frankland v. Nicholson, Pougett v. Tompkins, and Mather v. Ney, decided by Sir W. Scott, in all of which the banns were erroneous in the name of one of the parties, and the marriage was declared void ab initio. But in the two first cases there were circumstances of fraud. Heffer v. Heffer, Tree v. Quin, and Mayhew v. Mayhew, decided by the

*

same judge, are also cited in the same note. In these there was an error of the name, but the marriages were not annulled. From all the cases taken together, it might perhaps be inferred, that a mere error in the name would not make a marriage void (especially if a name acquired by reputation were used), unless there were circumstances of fraud, or other objection. But in Cope v. Burt, 1 Hagg. Cons. 438, Sir W. Scott seems to insist that it is essentially necessary that the banns should be published in the true

names.

(1) Dormer v. Williams, 1 Curteis, 870; Lane v. Goodwin, 4 Q. B. 361; Clowes v. Clowes, 3 Curteis, 185.

marriage was void ab initio, and sometimes granted a divorce from bed and board, but never a divorce from the bond of marriage. This complete divorce formerly occurred in England only when Parliament, by a private act made for the case, annulled a marriage. But in 1857, by the Statute of 21 Vict. ch. 85, a new court was established, under the name of The Court for Divorce and Matrimonial Causes." To this court is given the power exercised by Parliament of granting divorces, and all the jurisdiction over matrimonial questions formerly vested in the ecclesiastical courts. The statute also prescribes the grounds on which divorces may be granted; and it permits the husband to obtain a divorce for the wife's adultery; but the wife can obtain divorce only when the husband's adultery is accompanied with cruelty, or other aggravations which the statute specifies.

Very early in the settlement of New England, as we learn from Mather's Magnalia, the question was put to the clergy whether adultery was a sufficient cause for divorce; and they answered that it was. The courts of law thereafter decreed divorce in such cases, and this law and practice became nearly universal through this country. For many years, however, a divorce a vinculo was granted for no other cause than adultery, the law being made to conform to what was regarded as the positive requirement of Scripture. At length, however, the severity of this rule was modified. Divorce a vinculo was permitted for other causes; as desertion, cruelty, sentence to long imprisonment, and the like. The law and practice in this respect differ in the different States, being precisely alike in no two of them. (m) 2 And in some, the facility of obtaining a divorce has certainly been carried quite far enough. In nearly if not quite all the States, desertion for a longer or shorter period (sometimes called abandonment) is a ground of

1 In 1873 under the Judicature Act the powers of this court were lodged in the "Probate and Divorce Division of the High Court of Justice." For a synopsis of recent English statutes supplementing and amending the English law of divorce, see Bishop on Marriage, Divorce and Separation, § 153, note.

As to what cruelty will justify a divorce, see Kennedy v. Kennedy, 73 N. Y. 369; Cook v. Cook, 5 Stewart, 475; McClung v. McClung, 40 Mich. 493; Beyer v. Beyer, 50 Wis. 254; Johns v. Johns, 57 Miss. 530: and as to what will not, Soper v. Soper, 29 Mich. 305; Small v. Small, 57 Ind. 568; Miller v. Miller, 43 la. 325; Miller v. Miller, 78 N. C. 102; Faller v. Faller, 10 Neb. 144. Violence to the person need not exist. Black v. Black, 3 Stewart, 215; Wheeler v. Wheeler, 53 la. 511. See Close v. Close, 10 C. E. Green, 526; Latham v. Latham, 30 Gratt. 307. — K.

divorce. Mere absence is not enough, as the desertion must be wilful. (mm)1 In California it is held that absence implies desertion, if unexplained. (mn) Generally, there must be affirmative proof of its character. Hence, an agreement to separate, either express, or inferable from conduct or language, is a bar to the divorce. (mo) So conduct which would naturally lead to a separation, or would justify it, is also a bar. (mp) But if, after such consent, there is an honest desire for a restitution of conjugal relations, duly expressed and manifested, the earlier consent to separation does not bar the divorce. (mq) And a refusal to accompany the husband in a change of residence, would bar him. from obtaining a divorce on account of the separation, if the refusal were reasonable; but otherwise it would be desertion. (mr) In a late English case, desertion was held to begin not when cohabitation actually ceased, but when the husband determined to abandon his wife and live with another woman. (ms)

A divorce a vinculo annuls the marriage altogether; and it restores the parties to all the rights of unmarried persons, and relieves them from all the liabilities which grew out of the marriage, except so far as may be provided by statute, or made a part of the decree of divorce by the courts. Thus, it is a provision of some of our State statutes on this subject, that the guilty party shall not marry again. And the court generally have power to decree terms of separation, as to alimony, care and possession of children, and the like; and this decree is subject to subsequent modification. (mt)

2

(mm) Cook v. Cook, 2 Beasley, 263; Pidge . Pidge, 3 Met. 255; M'Coy v. M'Coy, 3 Ind. 555; Ingersoll v. Ingersoll, 13 Wright, 249; Word v. Word, 29 Ga.

281.

(mn) Morrison v. Morrison, 20 Cal.

431.

(mo) Jones v. Jones, 13 Ala. 145; Simpson v. Simpson, 31 Mo. 24; Crow r. Crow, 23 Ala. 583.

(mp) Wood v. Wood, 5 Iredell, 681; Fellows v. Fellows, 31 Me. 342; Sykes v. Halstead, 1 Sandf. 483; Levering v. Levering, 16 Md. 213.

(mq) Fishli v. Fishli, 2 Litt. 327; Fulton v. Fulton, 36 Miss. 517; Hanbury v. Hanbury, 29 Ala. 719.

(mr) Gleason v. Gleason, 4 Wisc. 64; Hardenburgh v. Hardenburgh, 14 Cal. 654; Hunt v. Hunt, 2 Stewart, 96. See Mayer v. Mayer, 3 Stewart, 411.

(ms) Gatehouse v. Gatehouse, Law Rep. P. & D. 331. So also in Phelan v. Phelan, 12 Fla. 449; Hankinson v. Hankinson, 6 Stewart, 66.

(mt) Cox v. Cox, 25 Ind. 303.

1 If a wife leaves her husband because he is unable to support her, Bennett v. Bennett, 43 Conn. 313; because he gambles, Sandford v. Sandford, 5 Stewart, 420; because he lied to her, Angelo v. Angelo, 81 Ill. 251; or because he fails to maintain her authority over the servants, Harris v. Harris, 31 Gratt. 13, it is not desertion on his part. If the party leaving would have returned if invited, it is not desertion, Thorpe v. Thorpe, 9 R. I. 57; but the invitation need not be extended if known that it will be ineffectual, Trall v. Trall, 5 Stewart, 231. See also Schanck v. Schanck, 6 Stewart, 363; Childs v. Childs, 49 Md. 509; Ford v. Ford, 143 Mass. 577.-K.

2 See Bullock v. Bullock, 122 Mass. 3; Commonwealth v. Lane, 113 Mass. 458; Thompson v. Thompson, 114 Mass. 566; Collins v. Collins, 80 N. Y. 1. — K.

As to the cruelty for which divorce will be granted, while it seems to be generally held that it must be à cruelty which affects "life or limb or health," it is also held that this may be by any treatment, or even mere words, which are such as may affect the health. (mu) In practice, proper precautions are used to prevent a divorce from being obtained by collusion; it not being granted merely upon the consent or on the default of the party charged, but only on proof of the cause alleged. (n)

85

*It has been held very distinctly, (o) and quite as emphatically denied, (p) that the adultery of the wife when insane is a sufficient cause for a divorce a vinculo. 1

A suit or petition for divorce for adultery will not be granted, if there be proof of connivance or collusion, (pp)2 or of condonation by the petitioning party. The general meaning of condonation, as an English word, is forgiveness; but it has, as a law term and used in this connection, a technical meaning; it is, forgiveness proved by the continued cohabitation of the parties after the guilt of the defendant is made known to the petitioner. It would seem only just to apply this rule with much less severity to the wife, who may be constrained by many reasons to continue for a

(mu) Bailey v. Bailey, 97 Mass. 531; Odour v. Odour, 36 Ga. 286; Beyer v. Beyer, 50 Wis. 254; Wheeler v. Wheeler, 53 la. 511. See further as to what constitutes cruelty, Farmer v. Farmer, 86 Ala. 322; Henderson v. Henderson, 88 Ill. 248; Gibbs v. Gibbs, 18 Kan. 419; Ford v. Ford, 104 Mass. 198; Kennedy v. Kennedy, 73 N. Y. 369; Detrick's Appeals, 117 Pa. 452; Myers v. Myers, 83 Va. 806.

(n) Indeed, so careful are the courts to guard against any collusion between the parties, one of whom has applied for a divorce, that although the respondent be defaulted, yet the alleged cause of divorce must be as distinctly and satisfactorily proved as in other instances. So likewise must the fact of marriage. Williams v. Williams, 3 Greenl. 135. And a divorce a vinculo, for the adultery of the husband, has been frequently refused where the only proof was the defendant's admission of the fact. Holland v. Holland, 2 Mass. 154; Baxter v. Baxter, 1 id.

346.

And this is done to avoid the possibility of collusion. But if it distinctly appear that the confessions were given under circumstances showing there was no collusion, the defendant's confessions are held sufficient. Billings v. Billings, 11 Pick. 461; Vance v. Vance, 8 Greenl. 132; Owen v. Owen, 4 Hagg. Ecc. 261. So the record of the conviction of the party upon an indictment for the same offence is admissible after default, and is sufficient proof of the marriage and the crime. Randall v. Randall, 4 Greenl. 326; Anderson v. Anderson, id. 100. Unless such conviction was had upon the testimony of the wife, as it might have been where the charge in the indictment was an assault and battery upon her. Woodruff v. Woodruff, 11 Me. 475.

(0) Matchin v. Matchin, 6 Pa. St. 332. (p) Nichols v. Nichols, 31 Vt. 328.

(pp) There is a strong recent case on this subject in Adams v. Adams, Law Rep. 1 P. & D. 333. See also Baylis v. Baylis, Law Rep. 1 P. & D. 395.

1 Insanity following the offence is no bar. Mordaunt v. Moncreiffe, L. R. 2 H. L. Sc. & Div. 374. As to the insanity of both parties, see Garnett v. Garnett, 114 Mass. 379. K.

2 Thus a note given towards procuring a divorce is void as between the parties, Kilborn v. Field, 78 Pa. St. 194; as well as an agreement for alimony, Adams v. Adams, 25 Minn. 72. See Cairns v. Cairns, 109 Mass. 408; Baugh v. Baugh, 37 Mich 59; Hopkins v. Hopkins, 39 Wis. 167; Sickles v. Carson, 11 C. E. Green, 440; Everhart v. Puckett, 73 Ind. 409.-K.

time with the guilty husband; whereas a husband is under no such necessity, and should renounce all cohabitation with a wife whom he knows to be an adulteress; and that a disregard of this requirement would bar his divorce is well settled. (pq)1

The courts may also decree a divorce a mensâ et thoro; and this kind of divorce was once the most common. But most of the causes which formerly only sufficed for a divorce from bed and board, are now very generally made sufficient for a divorce from the bond of marriage. In general, a woman divorced from the bed and board of her husband acquires the rights, as to property, business, and contracts, of an unmarried woman. And her husband is freed from his general obligation to maintain her, the courts having power, which they usually exercise, of decreeing such maintenance from the husband as his means, and the character and circumstances of the case render proper. (q) The law applying to foreign divorces is considered in our chapter on the Law of Place.

(pq) Turnbull v. Turnbull, 23 Ark. 615; Thomas v. Thomas, 2 Cold. 123. See, as to condonation, Sewall v. Sewall, 122 Mass. 156; Rogers v. Rogers, 122 Mass. 423; Warner v. Warner, 4 Stewart, 225; Farnham v. Farnham, 73 Ill. 497; Clouser v. Clapper, 59 Ind. 548.

(7) Dean v. Richmond, 5 Pick. 461, where it was held, that a wife divorced a mensâ et thoro may be sued, or sue as a feme sole. Parker, C. J., in delivering the opinion of the court, after quoting from 2 Kent, Com 136, as "a recently pub lished book, which I trust from the eminence of its author, and the merits of the work, will soon become of common reference in our courts," says: "So far as this opinion relates to the case of divorce, we fully concur with him, and are satisfied that, although the marriage is not to all purposes dissolved by a divorce a mensâ et thoro, it is so far suspended that the wife may maintain her rights by suit,

whether for injuries done to her person or property, or in regard to contracts express or implied arising after the divorce; and that she shall not be obliged to join her husband in such suit; and to the same extent she is liable to be sued alone, she being to all legal intents a feme sole in regard to subjects of this nature. Such, however, is not the law of England, it having been recently decided that coverture is a good plea, notwithstanding a divorce a mensa et thoro. Lewis v. Lee, 3 B. & C. 291. But the difference in the administration of their law of divorce and ours, and the power of the Court of Chancery there to protect the suffering party, will sufficiently account for the seeming rigor of their common law on this subject. If the husband is not liable for the debts of the wife, after a divorce a mensâ, the chief reason for denying her the right to sue alone fails." See also Pierce v. Burnham, 4 Met. 303.

1 So connivance by the libellant in the adultery of the libellee will prevent a decree of divorce being granted. As to what constitutes connivance, see Morrison v. Morrison, 136 Mass. 310. Cf. Robbins v. Robbins, 140 Mass. 528; Wilson v. Wilson, 154 Mass. 194. Connivance will also bar relief for any subsequent adultery, Hedden v. Hedden, 6 C. E. Green, 61; but not for a prior act of adultery unknown at the time of the connivance. Morrison v. Morrison, 142 Mass. 361.

93