A husband, who only remonstrated verbally with his wife and the man who afterwards commits adultery with her, will apply to the Court in vain (i). "Mere carelessness is not sufficient to constitute misconduct, but there must be a knowledge of an intimacy of a distinctly dangerous character. It must appear that the husband knew so much of it as to perceive the danger, and purposely or recklessly disregarded it, and forebore to interfere" (j). Mere suspicion of misconduct will not suffice; it must be established (k). The husband will not be deprived of his remedy whenever it can be proved that some conduct on his part has conduced to any particular act of adultery, after an adulterous intercourse has once been established; but his remedy will be withheld if he has so acted as to bring about that intercourse. The neglect must be such as conduces to the woman's fall, and not to any particular act of adultery after it (1). It is for the public interest that such a safeguard should be provided, and that a husband who has himself thrown his wife into temptation, and exposed her to the addresses of other men, should not be allowed to cast her aside after she has yielded to temptation. Taking a wife to a dancing-hall with another man, allowing her to dance with him constantly, and then leaving her there in his care night after night, is conduct conducing to adultery (m). The wife may allege introduction by her husband to an improper acquaintance, especially when she charges him with (i) Robinson v. R. and D., P. 1903, 155 L. T., 89, 74. (j) Dering v. D. and Blakely (Q. P.), L. R., 1 P. & D. 531. (k) Davies v. D. and Hughes, 32 L. J., Mat. 111; Hayes v. H. and Mason, 13 P. D. 12. (1) St. Paul v. St. P. and Far quhar (Q. P.), L. R., 1 P. & D. 739; see also Dagg v. D. and Speake, 51 L. J., Mat. 19; and Millard v. M. and B., L. T. 471; Hodgson v. H. and T., P. 1905, 233, 93, L. T. 466. (m) Barnes v. B., Grimwade, et al., 37 L. J., Mat. 4. adultery with that person. A husband cannot lead his wife to follow his bad example, and then take advantage of her (n). She may also allege cohabitation before marriage, for if that were so, greater care would be necessary afterwards (o); and though marriage is condonation of ante-nuptial incontinence, the latter has been pleaded in reply to a defensive charge by the wife of neglect or connivance (p). Exposure to temptation of a wife is wilful neglect (9). A husband is at all times bound to accord to his wife the protection of his name, his home, and his society: and is certainly not the less so in cases where her previous life renders her peculiarly accessible to temptation. No man is justified in turning his wife from his house without reasonable cause, and then claiming a divorce on account of the misconduct to which he has, by so doing, conduced. Ex.-A. married B., a prostitute, and in a short time separated without reasonable cause, inducing her to reside by herself in his chambers in Regent Street, where he had lived before marriage. There she committed adultery. Dissolution refused (r). A husband offered his wife an annuity if she would give up her adulterous connection. Subsequently, on proceeding, the adultery was proved, but the conduct of the husband was considered deficient in the necessary caution and circumspection, and his bill for divorce rejected (s). The neglect or misconduct specified in the 31st section, following cruelty, desertion, and wilful separation without reasonable excuse, must be neglect or misconduct by the husband ejusdem generis, viz., in his marital capacity, and must be a breach of some marital duty. Hence compulsory separation, as by imprisonment, is not (n) Graves v. G., 3 Curt. 235. (0) Ibid. A plea of seduction would raise an issue for another Court, and would therefore be bad. (p) Ibid. (g) Groves v. G. and Tompson, 28 L. J., Mat. 108. Teevan, et al., McQ. H. L. neglect as here intended (t). The respondent's conviction does not justify the petitioner's withdrawal from cohabitation, but, taken with other facts, it may do so. Ex.-A wife, who was in domestic service before marriage, and convicted and imprisoned immediately afterwards, returned to service upon her release. Her husband refused to cohabit with her. She committed adultery. He was held not to have conduced to her adultery by his refusal (u). Insanity. If a respondent, who is subject to insane delusions and is charged with a matrimonial offence, knows the nature of it and its probable consequences when committing it, insanity is no defence to the petition (x). A husband, whose conduct was found to have conduced to his wife's adultery, but only slightly, obtained a decree nisi, subject to his making a permanent provision for her, before decree absolute (y). Nullity is a defence to a suit for dissolution (2). Ex. A respondent pleaded that the marriage was null and void by reason of the petitioner's cohabitation with her sister before marriage. Plea held bad, because the cohabitation was before marriage (a). A deed of Separation may be a defence (b). Judicial Separation. The defences to this suit are similar to those in a suit for dissolution (c). A wife deserting her husband before his adultery, which she proved against him, was held entitled to a judicial separation notwithstanding (d). Pregnancy.-Concealment of by another man, by the (t) Cunnington v. C., Noble, et al., 28 L. J., Mat. 100. See also TownsT., L. R., 3 P. & D. 129. (u) Williamson v. W. and Bates, 51 L. J., Mat. 54. end v. (x) Yarrow v. Y., P. 1892, 92. (y) Parry v. P., P. 1896, 37. (z) Serrell v. S. and Bamford, 31 L. J., Mat. 55. (a) Pagani v. P. and Vining, L. R., 1 P. & D. 223; Wing v. Taylor, 2 Sw. and Tr. 278; 30 L. J., Mat. 258. (b) See ante, p. 49. (c) See ante, p. 56. (d) Duplary v. D., P. 1892, 53. petitioner, at the time of marriage is no answer, and will not make the marriage void (e). Impotence alleged.-A suit on the ground of impotence may be met by denial (ƒ) of the allegation-this is, of course, a complete answer if proved-or delay (g), and insincerity in suing (h)—as suppression of the age of the parties, with other motives. Absence of Consent-Breach of Statute-Bigamy.—A petition setting up nullity on either of these grounds may be met by denial, and if the denial is proved the answer is effectual. Restitution of Conjugal Rights. The answers to this suit in 1862 were stated to be only such as would entitle the respondent to judicial separation, e.g., adultery, cruelty, and desertion (i). But impotence with a prayer for nullity is also an answer (k). A covenant in a deed not to sue for restitution is also an answer (1). A false charge of having committed an unnatural offence, though not cruelty, was held by the Court of Appeal in 1895 to be a reasonable cause upon which to refuse restitution (m). Hence any conduct, which, in the opinion of the Court, may create a reasonable cause for refusing restitution, may be alleged in the answer, though it fall short of a matrimonial offence. (e) Moss v. M., P. 1897, 263. (f) See S. v. A., L. R., 3 P. D. 72; L. v. H., 34 L. J., Mat. 81; W. v. H., 30 L. J., Mat. 73; P. v. S., 37 L. J., Mat. 81; A. v. B., L. R., 1 P. & D. 559, same case. (g) M. v. B., 3 Sw. & Tr. 555; H. v. C., 1 Sw. & Tr. 605; E. v. T., 3 Sw. & Tr. 312; S. v. S., 1907, P. (h) Briggs v. Morgan, 2 Hagg. C. C. 330; Guest v. G., 2 Hagg. C. C. 321; and see G. v. M., 10 App. Cas. 171; L. v. B., P. 1895, 274. (i) See Burrows v. B., 2 Sw. & Tr. 544. (k) Ricketts v. R., L. J. 35, 92. Delay is no answer to this suit (n). Insanity is no answer. A husband is not entitled to turn a lunatic wife out of doors (o); but such insanity may be shown as will render cohabitation unsafe, though withdrawal from cohabitation is not the proper remedy for it (p). Impropriety, not amounting to a matrimonial offence, is no bar; nor is a refusal prior to the suit to permit conjugal intercourse (q). Ante-nuptial Incontinence.-A plea by the respondent of the petitioner's pregnancy resulting from seduction, and that he married her under her fraudulent misrepresentation that he had seduced her, is bad (r). Denying the Jurisdiction. The English Divorce Court has not jurisdiction against a [foreigner after he has quitted this country, for not rendering conjugal rights to his wife while he was here (8). Hence a plea to the jurisdiction, if proved, disposes of the suit in the respondent's favour; but see ante, p. 49, paragraph 3. Jactitation of Marriage. To this suit there are three defences:-1st, a denial of the boasting; 2nd, a setting up of the fact of marriage; 3rd, that the petitioner permitted the respondent to assume the status objected to (t). (n) Beauclerk v. B., P. 1895, 220. (0) Hayward v. H., 1 Sw. & fr. 83. (p) Radford v. R., 20 L. T., N. S. 279. (q) Rippingall v. R. and D., 24 W. R. 967. (r) Green v. G., 21 L. T., N. S. 401. (s) Firebrace v. F., L. R., 4 P. D. 63; Yelverton v. Y., 1 Sw. & Tr. 574. (t) Hawke v. Corri, 2 Hagg. Cons. 280; Bodkin v. Case, Milw. J. E. C. 653; Thompson! v. Rourke, P. 1893, 70. |
