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4. On a decree for dissolution of marriage, the appeal is first to the Court of Appeal; and thereafter there may (in certain cases) be an appeal to the House of Lords, within one calendar month if the House of Lords is then sitting, and otherwise within one fortnight after the House next sits (p).

5. When a marriage is dissolved, it is lawful for either party to marry again, as if the prior marriage had been dissolved by death (g). But the marriage is regarded as dissolved only as from the date of the decree absolute (r).

6. On a decree for judicial separation on the wife's petition, or on a decree for dissolution of the marriage, an order may be made assigning alimony to the wife, even in cases where she has been guilty of adultery (s), and providing for the custody, maintenance, and education of the children (t). And on a decree for divorce, or judicial separation on the ground of adultery in a wife entitled to any property, an order may be made providing for a portion of such property being settled upon the innocent party and the children of the marriage (u).

7. After a final decree for the dissolution of a marriage, a supplementary inquiry may also take place into the existence of any ante-nuptial or post-nuptial settlements made on the parties whose marriage is the subject of the decree; and on such inquiry, such orders may be made as shall seem fit, with reference to the application of the whole or a portion of the property settled, for the benefit

(p) Judicature Act, 1881 (44 & 45 Vict. c. 68), s. 9, modifying the Divorce Amendment Act, 1868 (31 & 32 Vict. c. 77), s. 3; Cleaver v. Clearer (1884), L. R. 9 App. Ca. 631.

(q) 20 & 21 Vict. c. 85, s. 57. (r) Norman v. Villars (1877), 2 Ex. D. 359; Hulse v. Hulse (1871), L. R. 2 P. & D. 259. See,

however, Prole v. Soady (1868), L. R. 3 Ch. App. 220.

(8) 20 & 21 Vict. c. 85, ss. 17, 32; Ashcroft v. Ashcroft, [1902] P. 272.

(1) Matrimonial Causes Act, 1859 (22 & 23 Vict. c. 61), s. 4.

(u) 20 & 21 Vict. c. 85, s. 45; 23 & 24 Vict. c. 144, s. 6. (See Gladstone V. Gladstone (1875), 1 P. D. 442.)

either of the children of the marriage, or of the parties whose marriage is dissolved (). The court may exercise this power, although there are no children of the marriage (y).

8. A decree of nullity of marriage may also be obtained on any ground which would formerly have justified a divorce à vinculo; and every such decree is also a decree nisi in the first instance (z). The like orders touching the settled property of the parties, and the maintenance and custody of the children if any, may, in the case of this decree, be made as in the case of a decree for divorce (a).

9. Where the King's Proctor, or any other person, intervenes or shows cause against the rule nisi for a divorce or for a judgment of nullity, such order may be made as to the costs thereby occasioned as shall seem just (b).

(x) 22 & 23 Vict. c. 61, s. 5; Thomson v. Thomson, [1896] P. 263; Allcard v. Walker, [1896] 2 Ch. 369.

(y) Matrimonial Causes Act, 1878 (41 & 42 Vict. c. 19), s. 3.

(z) 20 & 21 Vict. c. 85, ss. 6, 10, 22, 35, 41; 23 & 24 Vict. c. 144, s. 7; 36 & 37 Vict. c. 31.

(a) 20 & 21 Vict. c. 85, s. 35; 22 & 23 Vict. c. 61, ss. 4, 5; 41 & 42 Vict. c. 19, s. 3; A. v. M. (1885), 10 P. D. 178; Langworthy v. Langworthy (1886), 11 P. D. 85; Dormer v. Ward, [1900] P. 20.

(b) 41 & 42 Vict. c. 19, s. 2.

CHAPTER III.

OF PARENT AND CHILD.

THE relation of parent and child leads us to consider,. First, the law of legitimacy,-Secondly, the reciprocal duties and rights between parents and their legitimate offspring, and Thirdly, the rights and incapacities of illegitimate children (otherwise called bastards) (a).

I. A legitimate child is commonly described as a child born in wedlock; but, more accurately, he is a child between whose parents the relation of marriage subsisted either at the time when he was begotten, or at the time when he was born, or at some intervening period (b). For a child begotten of parents married at the time, or married afterwards (but before he was born) is legitimate, though in consequence of the death of one of them, or of their divorce, the marriage may have been dissolved before he was born; and the case is the same with a child born of parents married at the time of his birth, though they were unmarried when he was begotten. Our law makes it an indispensable condition, that the parents should in every case intermarry at some period before the child's birth (c), differing in this respect from the civil and canon laws, according to which it was sufficient, if the parents should intermarry even after the birth (d).

(a) Co. Litt. by Butler, 243 b, n. (2).

(b) Co. Litt. 7 b, 244 a; 1 Bl. Com. 446; Doe d. Birtwhistle v. Vardill (1840), 6 Bing. N. C. 385;

ef. Gardner v. Gardner (1877), L. R. 2 App. Ca. 723.

(c) Doe d. Birtwhistle v. Vardill (1840), 6 Bing. N. C. 385.

(d) Co. Litt. by Butler, 245 a, n. (1).

What has been hitherto said supposes, it will be observed, the true parentage in each case to be established; but that is a point which, even as regards the ostensible issue of married persons, the law permits (although with reluctance and under severe restrictions) to be brought into controversy. For if the husband be out of the kingdom of England, or, as the law somewhat loosely phrases it, extra quatuor maria, for above nine months, so that no access to his wife can be presumed, her issue begotten during that period shall be bastards (e); and (contrary to what was at one time supposed to be the law) (f) children born during marriage may also now be proved bastards by other evidence, e.g., by proof of the impotence of the husband, or by proof that the husband and wife had no opportunity, though both within the realm, of sexual intercourse within such period as is consistent with their being the parents (g), or even by proof of circumstances tending strongly to the inference that no such intercourse in fact took place (h). But except where evidence is given of facts sufficient to disprove sexual intercourse, the law always presumes in favour of the legitimacy of a child born to the wife during the marriage (i). Upon the same principle, legitimacy will always be presumed (subject to the same exception) with respect to children born after the coverture has ceased by reason of the husband's death, unless the birth takes place so long afterwards that the child clearly could not be begotten by him. What shall be considered as the ultimum tempus pariendi, i.e., the extreme period between

(e) Co. Litt. 244. (f) Ibid.

(g) Hawes v. Draeger (1883), 23 Ch. D. 173; Glenister v. Harding (1885), 29 Ch. D. 985; Bosvile v. Att.-Gen. (1887), 12 P. D. 177.

(h) R. v. Lubbenham (1791), 4 T. R. 251; Banbury Peerage

Case (1811), 1 S. & S. 153; Morris v.
Daries (1836), 5 Cl. & Fin. 163.
(i) R. V. Mansfield (1841),
1 Q. B. 449; Saye and Sele
Peerage (1848), 1 H. L. C. 507;
Hargrave v. Hargrare (1846),
9 Beay. 552.

the conception and the birth, is a matter of fact which the law leaves to be determined, according to the circumstances of the particular case, and the testimony which persons of experience may give of the course of nature on this subject; but in general, nine calendar months, or forty weeks, has been considered the outside limit (k).

[Where a widow is suspected to feign herself with child, in order to produce a supposititious heir, the heir presumptive, or other person who would in default of issue of the widow's late husband be entitled to real estate, may have a writ de ventre inspiciendo, to examine whether the widow be with child or not, and if she be, to keep her under proper restraint till delivered (); but if the widow upon due examination be declared not pregnant, the presumptive heir shall be admitted to the inheritance, though liable to lose it again on the birth of a child within the forty weeks from the death of the husband (m).

If a man dies and his widow soon after marries again, and a child is born within such a time as that by the course of nature he might have been the child of either husband, in this case he is said to be more than ordinarily legitimate; for, when he arrives to years of discretion, he may choose which of the fathers he pleases (n). To prevent this inconvenience, the civil law ordained that no widow should marry intra annum luctûs (0), a rule which obtained so early as the reign of Augustus, if not of Romulus (p). And the same constitution was probably handed down to our early ancestors from the Romans during their stay in this island; for we find it established under the Saxon

(k) Co. Litt. by Harg. 123 b, n. (1); Alsop v. Bowtrell (1620), Cro. Jac. 541; Bosvile v. Att.Gen., ubi sup. ; Burnaby v. Baillie (1889), 42 Ch. D. 282.

(1) Bract. 1. 2, ch. 32; Aiscough's Case (1731), 2 P. Wms. 591; Ex parte Wallop (1792), 4 Bro. C. C.

90; Re Blakemore (1845), 14 L. J.
Ch. 336; Co. Litt. by Harg. 8 b,
and n. (3); ib. 123 b, n. (1).
(m) Britton, ch. 66.

(n) Co. Litt. 8a; but see n. (7), by Harg.

(0) Cod. 5, 9, 2.

(p) Ov. Fast. 1. 33-36.

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