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have repeatedly recognized the validity of agreements on their separation (f). In a separation deed, the husband usually covenants with trustees appointed on behalf of the wife, or now even with the wife herself (9), that he will provide certain sums for the wife's separate maintenance ; the trustees on their part (or now the wife herself) covenanting with the husband to indemnify him against her debts, and the wife releasing, or covenanting to release, all claims for jointure and dower, or thirds. The deed also contains, in general, clauses by which both the husband and the wife covenant with the trustees, or with each other, not to molest or interfere the one with the other of them (h), and not to sue for the restitution of conjugal rights (). Under such an agreement, the wife is entitled to receive her separate allowance, so long as the separation continues, and so long as she observes the covenants on her part in the deed contained ; and (in the absence of an express stipulation therein) she will not forfeit her allowance even by the commission of adultery (k). It is to be observed, however, that though the law allows provision to be made for a separation already determined on, yet it will not sanction any agreement, the effect of which is to provide for the contingency of a future separation at the pleasure of the parties; because this (it has been justly considered) has a tendency to promote that very event (1). A separation deed (so far as

(f) Westmeath v. Salisbury (1820), 5 Bli. (N.s.) 339 : West. meath v. Westmeath (1830), 1 Dow. & Ll. 519; Hamilton v. Hector (1872), L. R. 13 Eq. 511; Charlesworth v. Holt (1873), L. R. 9 Exch. 38 ; Hunt v. Hunt (1861), 4 D. F. & J. 221 ; Wilson v. Wilson (1854), 1 H. L. C. 538.

(9) M'Gregor v. M'Gregor (1888), 21 Q. B. D. 424.

(h) Fearon v. Earl of Aylexford (1884), 14 Q. B. 1. 792.

(i) Clark v. Clark (1885), 10 P. D. 188 ; Tress v. Tres* (1887), 12 P. D. 128.

(k) Sireet v. Sweet, [1895] 1 Q. B. 12.

(?) Hindley v. Marquis of Westmeath (1827), 6 B. & C. 200 ; Cocksedge v. Cocksedge (1844), 14 Sim. 244 ; Cartwright v. Cart. wright (1853), 3 D. M. & G. 982.

it is a separation deed and nothing more) is invariably avoided by a subsequent reconciliation (m) ; but this avoidance would not follow as regards particular terms in respect of which the deed was expressed, or was clearly intended, to have a continuing operation after the reconciliation (n). And the avoidance, even in the case of the ordinary separation deed, has no relation back (o). It must always be remembered, that a married woman, though thus voluntarily separated from her husband, is not thereby divested, as regards her position toward third parties or otherwise, of the condition of coverture (p).

III. The mode of the dissolution of the relation of husband and wife.---The relation of husband and wife may, however, be actually dissolved either by death or by divorce. Before the Matrimonial Causes Act, 1857 (9), there were two kinds of divorce obtainable by suit in the Ecclesiastical Courts; the one à mensâ et thoro, and the other à vinculo matrimonii. [Divorce à mensâ et thoro, or separation from bed and board, was pronounced in cases where, there having been no illegality in the union at its commencement, yet from some supervenient cause it became improper for the parties to live together ; as for the cause of intolerable cruelty in the husband, adultery in either of the parties, and in some few other cases mentioned in the books (r). But this species of divorce was never granted on the prayer of the husband on the ground of adultery, if the wife recriminated and proved that he also had been unfaithful to the marriage vow ; or if it appeared that, after knowledge of her

(m) Vicol v. Nicol (1886), 30 Ch. 1). 143 ; 31 Ch. D. 524 ; but see Rovell v. Rowell, [1900] IQ. B. 9.

(n) Wilson v. Mushett (1832), 3 B. & Ad. 743 ; Negus v. Forster (1882), 46 L. T. 675 ; Vicol v. Virol, supra.

(0) Crouch v. Waller (1859), 4 De G. & Jo. 302.

(p) Marshall v. Rutton (1800), 8 T. R. 545.

(9) 20 & 21 Vict. c. 85.

(r) Evans v. Erans (1790), 1 Hagg. Const. 36.

[adultery, he had cohabited with her or otherwise condoned her offence (s). The sentence for this divorce, though it effected a judicial separation, did not bastardize the issue of the marriage, or enable either of the parties to contract a fresh union ; but the wife, if the innocent party, generally became entitled to alimony, that is, an allowance for her support out of her husband's estate to an amount settled at the discretion of the judge on a consideration of all the circumstances of the case, and usually proportioned to the rank, quality, and means of the parties. But no alimony was allowed to the wife if the divorce was on the ground of her adultery, or if she already had from other sources a sufficient income (t).

Divorce à vinculo was a declaration by the Ecclesiastical Court that the marriage was a nullity, as having been absolutely unlawful from the beginning ; and it separated the parties pro salute animarum (u), bastardized the issue (.c), and enabled the parties severally to contract another marriage at their pleasure (a). This particular species of divorce was never granted for any cause arising subsequently to the marriage, not even for adultery itself (1). For the canon law regarded the nuptial tie as sacred, and in that regard went even beyond the divine revealed law, which expressly assigns incontinence as a cause (and indeed the only cause) why a man may lawfully put away his wife and marry another (c).] But though divorce à vinculo for adultery could not, prior to the Matrimonial Causes Act, 1857, be obtained in the regular course of law, either in the ecclesiastical or in the secular courts, yet it was very frequently granted by a private Act of Parliament, it having become the practice of the legislature to exercise its paramount authority in this

(8) 1 Ought. 317; Burn, Eccl. Law, Marriage, xi.

(t) Cowell, tit. Alimony.
(u) 1 Bl. Com. 440.
(2) Ibid. ; Co. Litt. 235.

(a) Stephens v. Totty (1603), Moore, 665, 683; Cro. Eliz. 908.

(6) Bac. Ab. Marriage, 3 E. 3 ; Foliambe's Case (1603), 3 Salk. 138.

(c) Matt. xix. 9.

manner, by way of extraordinary relief to a husband thus injured; but semble, not to a wife.

By the Matrimonial Causes Act, 1857, however, and the subsequent statutes passed for its amendment, or incidentally affecting its provisions, not only has the jurisdiction of the ecclesiastical courts in causes matrimonial been taken from them, and been transferred to the new court created by that Act (d), and thence transferred to the Probate, Divorce and Admiralty Division of the High ('ourt of Justice under the Judicature Act, 1873; but many novel provisions have been introduced into the law of divorce itself. The main effect of these provisions may be summarily stated as follows.

1. A judicial separation (in lieu of the divorce à mensâ et thoro) may now be decreed, on the petition of either husband or wife ; and this decree has all the effect that belonged to the old divorce à mensâ et thoro (e). A judicial separation may be decreed on the ground of adultery, or cruelty, or on the ground of desertion without cause for two years and upwards on the part of either husband or wife (f); and, during the continuanee of the decree, the wife acquires, as to property and for many other purposes, the condition of a feme sole (g).

2. A divorce or dissolution of the marriage (corresponding with the old divorce à vinculo matrimonii) may also now be obtained, on the petition of either husband or wife (h). When the husband is the petitioner, it may be on the ground that since the marriage the wife has been guilty of adultery ; but where she is the petitioner, it may

(d) 20 & 21 Vict. c. 85, ss. 2, 6. (e) Sect. 7.

(5) Sect. 16. A decree will be refused to a petitioner who has been guilty of a matrimonial offence, other than desertion (Otway v. Otray (1888), 13 P. D. 141; Duplany v. Duplany, [1892] P. 53; Synge v. Synge, [1900] P. 180).

(g) Sects. 25, 26 ; see above, p. 312

(h) A private Act may still be necessary under special circumstances, as where the parties are domiciled in Ireland. See Joynt's Divorce Bill (1888), 13 A. C. 741 ; and Whitaker's Divorce Act, 1894.

only be on the ground that he has since the marriage been guilty of incestuous adultery, or of bigamy with adultery, or of rape, or of unnatural crime, or of adultery coupled with such cruelty as would (without adultery) have formerly entitled her to a divorce à mensâ et thoro, or of adultery coupled with desertion, without reasonable excuse, for two years or upwards (?). But no divorce can be decreed, if the petitioner (whether husband or wife) has been accessory to, or has connived at, or has condoned, the adultery, or if the petition is presented or prosecuted by collusion (k). And the court is not bound to decree the divorce, if the petitioner has been guilty of adultery during the marriage, or of cruelty, or of desertion or wilful separation, or of such wilful neglect or misconduct as has conduced to the adultery, or if there has been unreasonable delay in presenting the petition (I).

3. Every decree for a divorce is, in the first instance, a decree nisi, to be made absolute after the expiration of such a period (not less than six months) as by general or special order is from time to time directed (m). At the expiration of that time, the petitioner (but not the respondent) may apply to have the decree nisi made absolute (n), During this interval, any person may show cause why the decree should not be made absolute, either by reason of collusion or of some material facts not brought forward at the hearing of the original petition ; and, on cause being so shown, the case is dealt with, either by making the decree nisi absolute, or by reversing that decree, or by requiring further inquiry, or otherwise ordering as justice may require (0). The King's Proctor is the official specially charged with intervening, in cases in which the process of the court is being used for improper purposes.

(i) 20 & 21 Vict. c. 85, s. 27.
(k) Sect. 30.
(1) Seot. 31.

(m) Matrimonial Causes Act, 1866 (29 & 30 Vict. c. 32), s. 3.

(n) Ousey . Ourey (1875), 1 P. D. 56.

(0) Matrimonial Causes Act, 1860 (23 & 24 Vict. c. 144), s. 7.

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