PRIMARY JURISDICTION.

1021

application of the petitioner. Then and not until then the Decree
marriage is dissolved. Between the decree nisi and the decree absolute.
absolute the parties remain man and wife in the eye of the
law (1).

(1) See as
Queen's Proctor: Butler v. Butler, 15
to intervention of
P. D. 32, 126. When the six months,
the statutory interval of time, have
passed after the decree nisi, the
petitioner's solicitor should search
the record in the case for proceed-
ings in intervention or otherwise by
the Queen's Proctor, and on finding
none make and file an affidavit to
that effect. The case is then called
on in open Court on the next con-

venient motion day by the sitting registrar, and no objection being made the decree is pronounced absolute by the judge, and the marriage is finally dissolved. See as to Indian divorce: Warter v. Warter (No. 2), 15 P. D. 152; and as to circumstances under which the Court refused to dismiss petition for want of prosecution: Southern v. Southern, W. N. (1890) 80.

VOL. II.

Void marriages.

Voidable

CHAPTER IV.

PRIMARY JURISDICTION OF THE PROBATE, DIVORCE
AND ADMIRALTY (continued).

II. NULLITY OF MARRIAGE.

Suits for nullity of marriage are brought to have marriages declared void.

Marriages, says Mr. Dixon, are either (1) void ab initio; or (2) voidable at the option of the injured party.

Under the heads of marriages void ab initio, fall :

(1) Bigamous marriages;

(2) Marriages void on the ground of insanity;

(3) Marriages between persons within the prohibited degrees of consanguinity or affinity.

Under the head of voidable marriages, fall those which are marriages. voidable on the ground of:

(1) Impotence;
(2) Want of age.

Voidable marriages can only be annulled during the lifetime of the parties (1).

"The courts of law have always refused to recognise as binding contracts to which the consent of either party has been obtained by fraud or duress, and the validity of a contract of marriage must be tested and determined in precisely the same manner as that of any other contract. True it is that in contracts of marriage there is an interest involved above and beyond that of the immediate parties. Public policy requires that marriages should not be lightly set aside, and there is in some cases the strongest temptation to the parties more immediately interested to act in collusion in obtaining a dissolution of the marriage tie. These reasons necessitate great care and circumspection on the part of the tribunal, but they in no wise. alter the principle or the grounds on which this, like any other contract, may be avoided" (2).

() A. . B., 1 P. & D. 559.

(2) Per judgment of Butt, J., in Scott v. Sebright, 12 P. D. 23.

In the case of Durham v. Durham (1) a petition was pre- Insanity. sented asking for a declaration of nullity of marriage on the ground that the wife was, at the time of the celebration of the ceremony, of unsound mind and incapable of contracting marriage. The Court in deciding the case proceeded on the principle that the burden of shewing that the respondent was insane at the time of the marriage lay upon the party asserting it. "Soundness of mind," the President said, "might be defined for the purposes of the question before the Court, as constituted by a capacity to understand the nature of the contract, and the duties and responsibilities which it created. A mere comprehension of the words of the promises exchanged," he continued, "is not sufficient. The mind of one of the parties may be capable of understanding the language used, but may yet be affected by such delusions, or other symptoms of insanity, as may satisfy the tribunal that there was not a real appreciation of the engagement apparently entered into. I am bound to take into consideration the fact that she has now become manifestly insane. I must look at the nature of that insanity, and form an opinion from the general history of the case, whether it is recent or sudden in its inception, or whether it has been of slow growth, and whether it had begun before the marriage and had by that time reached a stage which incapacitated the respondent from entering into the contract of marriage."

III. JUDICIAL SEPARATION.

This suit is the substitute provided by the Matrimonial Causes Act, 1857, for the old suit for divorce a mensa et thoro. It can be brought by either husband or wife on the ground of adultery, cruelty, desertion without cause for two years or upwards, or sodomitical practices. On proof of any of these matrimonial offences the petitioner is entitled in the absence of material matrimonial wrong on his or her part to a decree, but it was decided by the Court of Appeal that a wife guilty of adultery could not obtain a decree for judicial separation against a husband guilty of cruelty and adultery (2).

As already stated, the wife's adultery entitles the husband to a dissolution, but he may prefer the smaller remedy, and still, upon a repetition of adultery, avail himself of the greater one. In practice this course is seldom taken.

(1) Durham v. Durham, 10 P. D. 80, where the previous authorities on the subject are cited.

(2) Otway v. Otway, 13 P. D. 141; and see also Phillips v. Phillips, 13

P. D. 220 (as to inquiry with regard
to separate property); Moore v. Moore,
12 P. D. 193 (as to separation deed);
Lodge v. Lodge, 15 P. D. 159 (ques-
tion whether desertion or not).

Judicial separation.

Matrimonial Causes

With regard to judicial separation, the Matrimonial Causes Act, 1878 (41 Vict. c. 19) enacts that: If a husband shall be convicted summarily or otherwise of an aggravated assault within the meaning of the statute, 24 & 25 Vict. c. 100, s. 4, upon his wife, the Court or magistrate before whom he shall be so convicted may, if satisfied that the future safety of the wife is in peril, order that the wife shall be no longer bound to cohabit with her husband, and such order shall have the force and effect in all respects of a decree of judicial separation on the ground of cruelty (1).

It will be seen that either husband or wife may obtain a decree of judicial separation on the ground of cruelty, but still the Court regards cruelty as regards the two opposite sexes in a somewhat different way.

The law on this subject has been judicially stated as follows: "There is no doubt that for acts of personal violence a husband is as much entitled as a wife to a decree of judicial separation, but the ground on which the Court interferes in such cases is different from that on which it proceeds when the wife is the petitioner. When the wife is the complainant, the substantial ground for the Court's interposition is, that her personal safety is in jeopardy. When the husband is the complainant, it is because he may be tempted in defending himself to retaliate on his wife that the Court is bound to interfere, and to decree a judicial separation when such acts are proved. Generally speaking, that would be cruelty if practised by a wife towards her husband, which would be held to be cruelty if done by him towards her. I say generally speaking, for I think there must be some distinction necessarily founded on the great difference between the sexes, and the power of the husband in ordinary circumstances to protect himself from his wife's violence. Still the same great rule of danger to life or limb must prevail in this as in other cases of the same genus. Necessary protection is the foundation of all separation" (2).

IV. RESTITUTION OF CONJUGAL RIGHTS.

A party to a marriage may sue for restitution of conjugal rights upon the withdrawal by the other party from cohabita"Just cause Act, 1884. tion without just cause. is the commission by the

(1) See Hetherington v. Hetherington, 12 P. D. 112.

(2) Forth v. Forth, 36 L. J. (Mat.)

122; Furlonger v. Furlonger, 5 N. C.

425.

monial Causes

party seeking restitution of either one or more of the matri- Matrimonial offences already enumerated. On proof of the petitioner's case, and in the absence of proof of just cause by the respondent, Act, 1884. the latter, till the year 1884, was at the petitioner's mercy, and must have returned to cohabitation under pain of attachment and imprisonment. "So far," said Sir James Hannen (1), "are suits for restitution of conjugal rights from being in truth and in fact what theoretically they purport to be-proceedings for the purpose of insisting on the fulfilment of the obligation of married persons to live together-that I have never known an instance in which it has appeared that the suit was instituted for any other purpose than to enforce a money demand." Such a condition of the law was calculated to work irreparable mischief in many cases, and hence an Act was passed in the year above-mentioned to remedy this blot in our legal system, to which public attention had been much directed by a case decided on that subject (2).

The material provisions of that Act are as follows:

Disobedience to a decree of restitution of conjugal rights is no longer enforceable by attachment, but when the application is by the wife the Court may when making the decree, or at any time afterwards, order the husband, if the decree be not complied with, to pay to the petitioner such periodical payments as may be just, the order to be enforceable like orders for alimony, and, if necessary, these payments may be ordered to be secured by deed (3). By sect. 3, when the husband petitions for restitution, and the wife is entitled to property in possession or reversion, or in respect of trade profit or such like, the Court may make a settlement of her property or any part thereof on the husband and children of the marriage or either or any of them, and may order such part of the profits, &c. as may be just to be paid periodically for a like purpose.

By sect. 4 the Court may vary or modify its orders under the preceding section from time to time.

By sect. 5 non-compliance with a decree of restitution may be treated as desertion by the petitioner, and he or she may at once sue for judicial separation on the ground of desertion, and where the husband has already been guilty of adultery, the wife may sue for dissolution, and the decree, if pronounced, shall be an ordinary decree nisi.