146

NEW COURT OF DIVORCE.

LETTER XVI.

As you desire to know something of the new law of Divorce, and its operation on the rights of property, I will now comply with your wish.

Either

A new court, with high judicial officers, was created to adjudicate on divorce and matrimonial causes in England.* Judicial separation is a new term introduced for the old divorce a mensâ et thoro. the husband or the wife may obtain a judicial separation on the ground of adultery, or cruelty, or desertion without cause for two years or upwards; and after two years' desertion it is too late for the offending party to make a bonâ fide offer to return. And such separation, or a restitution of conjugal rights, may be granted by the Court. Decrees for judicial separation may, for sufficient cause, be reversed by the Court when obtained in the absence of the party applying.

The Court can direct the husband to pay alimonythat is, an allowance to the wife for her support; and if he do not pay it, he may be sued for necessaries supplied to her. She becomes after the judicial separation,

* 20 & 21 Vict., c. 85; 21 & 22 Vict., c. 108; 22 & 23 Vict., c. 61. Court made perpetual by 25 & 26 Vict., c. 81.

The powers in the original Act to the Judges of Assize or Counsel, to which I for one strongly objected, have since been repealed by 21 & 22 Vict., c. 108, s. 14. In the Select Committee I voted against the composition of the Court; on the other side all the other members were arrayed. The 22 & 23 Vict., c. 61, had greatly enlarged, and therefore, I think, improved the Court. Since I wrote the above, the powers of the full Court have been vested in the Judge-Ordinary, who, however, may call in another judge to his assistance, or may direct any matter to be heard by the full Court, and the appeal to the House of Lords is preserved-23 & 24 Vict., c. 144, s. 1, 2, 3, and see s. 8.

JUDICIAL SEPARATION.

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and whilst it continues, a feme sole (a single woman) with respect to property of every description which she may acquire, or which may devolve upon her; and if she die intestate, it will go as if her husband had been then dead. In case of re-cohabitation, the property will continue to be her separate estate, unless some agreement in writing be made between them whilst separate. During the separation she may, as a single woman, enter into contracts, and sue and be sued-and this is a liability which she should keep in view; and her husband will not be liable for her debts or acts.* But they may execute any joint power given to them.

I must postpone for a moment stating the other incidents of a judicial separation, whilst I point out to you the cases in which the marriage may be dissolved; and here you will observe that for well-considered reasons the remedies are not reciprocal. The husband may obtain a divorce dissolving the marriage upon the simple fact of his wife's adultery. The wife can obtain such a divorce only where the husband has been guilty of incestuous adultery, or of bigamy with adultery, or of rape, or of foul crimes-for which I must refer you to the statute, and the insertion of which I endeavoured in vain to keep out of the statute-or of adultery coupled with such cruelty as would have entitled her to a divorce a mensa et thoro, or of adultery coupled with desertion, without reasonable excuse, for two years or upwards. And in the two latter instances the husband and wife respectively are made competent, and are compellable to give evidence of, or relating to, such cruelty or desertion. And now parties to any proceedings instituted in consequence of adultery, and the husbands and wives of such parties, are made competent to give evidence of * 28 Vict., c. 43, s. 2-4, Ireland.

22 & 23 Vict., c. 61, s. 6.

32 Vict., c. 68, s. 3.

148

DIVORCES BETWEEN HUSBAND AND WIFE:

such proceedings, but not bound to answer any question tending to show that he or she has been guilty of adultery, with an exception where the witness shall in the same proceeding have been examined in disproof of his or her alleged adultery. Desertion has been held to mean at least a wilful absenting himself by the husband in spite of the wish of the wife, she not being a consenting or concurring party. And after the two years' desertion has expired, the husband cannot evade the wife's right to relief by a bona fide offer to return. If the case is proved, and the Court shall not find that the petitioner has been in any manner accessory to or conniving at the adultery of the other party to the marriage, or has condoned (or forgiven) the adultery, or that there is collusion with either of the respondents, the marriage is to be dissolved by decree. But the Court is not bound to pronounce such decree (observe, it is not said that the Court may not) if it shall find that the petitioner has, during the marriage, been guilty of adultery, or shall, in the opinion of the Court, have been guilty of unreasonable delay in seeking redress, or of cruelty towards the other party, 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. This provision, therefore, applies equally to the husband and wife. The petition will be dismissed if the petitioner has been accessory to or conniving at the adultery of the other party, or has condoned (or forgiven) the adultery, or there is collusion with either of the respondents.

An appeal lies to the House of Lords from the decision of the full Court on any petition for the dissolution of a marriage,* or for nullity of marriage.†

* 20 & 21 Vict., c. 85, s. 56.

21 & 22 Vict., c. 108, s. 17.

ALIMONY.—ADULTERER A CO-RESPONDENT.

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Where a wife sought a divorce on account of her husband's cruelty and adultery, and proved the adultery, and he recriminated and proved that she had been guilty of adultery, her suit was dismissed, whereupon she instituted a suit claiming restitution of conjugal rights, which also was dismissed on account of her adultery, although her husband was equally guilty. Her object, of course, was to procure a maintenance from her husband, but she was properly left without any such provision.

The provision for the wife's release in case her husband is guilty of bigamy with adultery is somewhat ambiguous. It has been considered that the adultery must be with the person with whom the bigamy was committed, and this seems to be the true construction.

The Court has power to make interim orders for payment of alimony for the wife, and ultimately to suspend the divorce until the husband has made a proper provision for her.

The husband must, it seems, in every case make the alleged adulterer with his wife a co-respondent to his petition, unless the Court excuse him. The wife, in applying for a dissolution of the marriage, may be ordered to make the person with whom the husband is alleged to have committed adultery a respondent; but in either case the Court has now power, after the close of the evidence on the part of the petitioner, to direct such co-respondent or respondent to be dismissed from the suit, if it shall think there is not sufficient evidence against him or her.* This provision was occasioned by a case which excited great public attention. Generally speaking, the costs of the proceedings in the Divorce Court for a dissolution of the marriage by reason of the wife's adultery, to which the adulterer is made a co* 21 & 22 Vict., c. 108, s. 11.

150

COSTS. JURY.

CO-RESPONDENTS.

respondent, will be payable by him, as an indemnity to the husband. This the Court has power to order,* and the power has been exercised. Any of the parties may insist upon having the contested matters of fact tried by a jury. In every case, the petitioner must by affidavit verify the facts so far as he or she is able to do so, and deny collusion. And the Court may examine the petitioner-husband or wife-on oath; but they are not bound to answer any question tending to show that he or she has been guilty of adultery.

When a husband is seeking a divorce in the Divorce Court on account of his wife's adultery, and he makes the alleged adulterer a co-respondent, he cannot withdraw his suit for a money consideration. Such a compact has been held to be void on the ground of its contravening public policy. The statute only allowed damages to be recovered on the condition that the disposal of them should be under the control of the Court, and it is not consistent with public policy for the Court to lend itself to a scheme by which a man seeks to pocket the price of his own shame. An agreement to compromise a suit for divorce is against public policy, and cannot be enforced.

Although the Divorce Court will not regard an agreement not to seek for co-habitation, yet an action may be brought upon the husband's covenant not to sue; and Equity, when the covenant was entered into for a sufficient consideration, will enjoin the husband from taking any step to enforce co-habitation. This seems the better opinion.

There are some important remedies applicable to all cases. As to children, the Court may make such interim or final orders as it may deem just, with respect to their * 20 & 21 Vict., c. 85, s. 34.

+ Upon petitions for a dissolution of marriage, in no case has the petitioner been examined; upon petitions for judicial separation, the petitioners have been examined in twenty-one cases.-(28th March 1859.)