This term which is adopted from Chancery was, in the old Ecclesiastical Court, called a libel, and has much in common with a declaration at common law.

It is a written statement properly intituled either "To the Judge Ordinary of Her Majesty's Court for Divorce and Matrimonial Causes," or "To the Full Court of Her Majesty's Court for Divorce and Matrimonial Causes," (a) according to the branch to which it is to be submitted.

Next comes the date, and the statement of whose petition it is, and the residence of the petitioner.

According to the form issued with the first rules and orders it should now be paragraphed, stating

Firstly. The marriage of the petitioner, the date of the said marriage, and the party to whom married; and whether a bachelor, widower, spinster, or widow; and where the marriage was solemnized; whether at a church or elsewhere.

Secondly. Subsequent cohabitation, where, and for how long, and the issue, if any, of the same.

(a) Vide note (a) on page 2.

Thirdly. The adultery (a) should first be alleged, if any there be.

Fourthly Other adultery, cruelty, desertion, bigamy, incest, rape, sodomy, or bestiality, if any there be, and according to what is sought.

Then comes the prayer for a decree, and the relief sought, with a conclusion.

Forms of various petitions will be found in the Appendix, on page 73 to 82.

The chief points in framing the petition are, to avoid pleading evidence, Allen v. Allen and D'Arcy, 5 Jur. 128; also unnecessary verbiage and surplusage; and to distinctly aver the

(a) Adultery must be alleged and proved against a woman to get a divorce. Rape, sodomy, or bestiality, incestuous adultery, or bigamy, or adultery coupled with cruelty, or adultery coupled with desertion, without reasonable excuse for two years or upwards, must be proved against a man to obtain a divorce, 20 & 21 Vict. c. 85, s. 27; but a judicial separation may be obtained either by the husband or the wife on the ground of adultery, or cruelty, or desertion without reasonable cause for two years and upwards, 20 & 21 Vict. c. 85, s. 17; and a protection order may be obtained by a wife any time after wilful desertion, 20 & 21 Vict. c. 85, s. 21, ex parte Hall 27 L.J. 19; but a bonâ fide offer of the husband to return and provide for her will bar her right to an order, though not to a divorce, Cargill v. Cargill, 27 L. J. 69; provided the offer to return and provide, &c., for her was not made before the 20 & 21 Vict. c 85, came into operation, Brookes v. Brookes, 5 Jur. 76; and when the petition alleges desertion only, evidence of cruelty will not be received. See also the "Digest of Evidence."

grounds upon which the petitioner relies. In the case of Pyne v. Pyne, 1 S. & T. 80, 6 W. R. 507, his Lordship advised that the petition should be amended, as it did not distinctly aver desertion; and then added, "that it may be right to state some circumstances, though care should be taken not to plead evidence." Nor ought the counts in it to contain long rambling statements, as, although in one such case the Judge Ordinary would not, on application, order the unnecessary parts to be struck out, yet he strongly intimated that, on taxation, they would not be allowed, Forster v. Forster and Evans, 31 L. T. 104; and upon a further objection taken to it, inasmuch as neither the affidavits, nor any of the counts in the petition, stated the issue of the marriage, the Judge Ordinary said, "I do not think that you can require the issue specified." This, however, does not strongly approve of a mere general statement that there were certain children, issue of the said marriage; the better course, apparently, would be to state that there were certain children, issue of the said marriage, to wit, three sons and two daughters, pro re nata.

Where cruelty is alleged, however, such acts should be specified as, if proved, will constitute legal cruelty, Suggate v. Suggate, 28 L J. 7; and acts of cruelty committed on the children in the presence of their mother may be inserted, inasmuch as these, when done in her presence, are

cruelty to her. But when cruelty is not alleged in a petition, evidence of it will not be received. Brookes v. Brookes, 5 Jur. 76.

It does not require the signature of counsel like a bill in equity; although, in any but the simplest cases, it is advisable for all parties that it should be drawn or, at least, examined by counsel.

be

A petition may be amended; but in that case notice ought to be given to the opposite party, Wright v. Wright, 6 W. R. 507; or may withdrawn after due notice to the other side, Lutwyche v. Lutwyche, 5 Jur. 76: and, if amended, must be served over again, Day v. Day, MSS.

Whether, however, the opposite party or parties will have twenty days to answer the amendment is doubtful. In Common Law a less time is generally ordered.

The petition must be served on the party to be affected thereby, either within or without Her Majesty's dominions, 20 & 21 Vict. c. 85, s. 42; and every petition must be accompanied by an affidavit made by the petitioner, verifying the same so far as he or she is able to do so, 20 & 21 Vict. c. 85, s. 41; also those facts of which he or she has personal cognizance, or must swear to the best of his or her belief, vide the last application in Tourle v. Tourle and Renshaw, 27 L. J. 53; and such affidavit must be filed with the petition, rule 2: also when the petitioner seeks a decree affecting marriage and its relative duties

and responsibilities, either partially so, as in a judicial separation [equivalent now to what was formerly called a divorce a mensâ et thoro], or a total severance, as in a divorce, as well as when it merely seeks a decision of the Court against an alleged or a voidable marriage, as in cases where the petition is for a jactitation of marriage; or in a suit for nullity of marriage, the affidavits must then state, in addition, that there is not collusion or connivance between the deponent and the other party to the marriage, 20 & 21 Vict. c. 85, s. 41.

any

A petition may pray for a divorce by a wife and in case the evidence produced at the trial should only be sufficient in law for a judicial separation, the latter has been granted, Smith v. Smith, 28 L. J. 27, 32 L. T. 394, 7 W. R. 382.

Every petitioner forthwith, after filing his or her petition and affidavit, must issue and serve on the respondent in the cause a citation, rule 4; and also upon any party whom he intends to make a co-respondent in the same cause, rule 5; and must deliver, along with each citation, a copy of the petition certified under the seal of the Court, rule 6 (a).

(a) There is here a considerable variation from the proceedings in a common law action; as, in the latter practice, the declaration, which, to a certain degree, a petition resembles, cannot be filed until nine days after service of the writ of summons, unless the defendant has