Page images

the next chapter the subject of which shall be proceedings for divorce by the wife"-the grounds upon which she is entitled to petition, and the bars to her remedy. We shall afterwards refer to the proceedings -petition, answer, &c. to proof of marriage, and the evidence requisite to support the charge of adultery.



1. Wife may petition for incestuous adultery alone. 2. Husband bound to bear expenses. 3. Other offences necessary when adultery not incestuous. 4. Nature of the offences. 5. Cruelty explained 6. Cruelty provoked meets no redress. 7. Desertion explained. 8. Recapitulation of wives' rights. 9. Bars to her remedy. 10. Condonation less stringent against wife. 11. Decree to be pronounced-in what event.

1. A wife cannot proceed for divorce on the ground of adultery alone, unless it be incestuous adultery: that is, adultery committed by the husband with a woman with whom, if his wife were dead, he could not lawfully contract marriage, by reason of her being within the prohibited degrees of kindred.' Between the offence of adultery by the husband and the same offence by the wife, the difference is boundless. Accordingly the law, while it gives the husband the remedy for one single act of adultery on the part of the wife, requires that, to entitle the wife to a decree, she must, except in the case of incestuous adultery not only prove the commission of "adultery” by the husband, but also that it

- Sec. 27. And see Book of Common Prayer, title “ Table of Kindred and Affinity.”

is accompanied by one or more of the following of fences? :

2. First, that he committed bigamy; second, that he committed rape, sodomy, or bestiality; third, that he has committed such cruelty as, without adultery, would, under the old law, have entitled the wife to a divorce a mensa et thoro ; fourth, desertion, without reasonable excuse for two years or upwards.2

3. The nature of the first offence is so well known, as not to require explanation. The second we shall pass over for obvious reasons. But it will be desirable to make a few observations about the third and fourth.

4. As to the third offence, namely,“ such cruelty as without adultery would have entitled her to a divorce a mensa et thoro.” On this subject the reader is referred back to the definition of cruelty, and the several authorities upon that subject, given in the chapter just concluded, which are directly applicable here, the court having in most of those cases awarded divorces a mensa et thoro.3

Lord Stowell, in speaking of the difficulty of laying down, under the infinite variety of possible cases that may come before the Court, any safe description of cruelty of such a nature as would warrant the court to grant divorces a mensa et thoro, says, “ Danger to life and limb is usually assigned as the ground upon which the Court proceeds to grant a separation. The Court has never been driven off this ground. Proof must be given of a reasonable apprehension of bodily hurt. The Court, however, is not to wait until hurt is actually done ; but the apprehension must be reasonable; it must not be apprehension arising from an exquisite or diseased sensibility of mind." There must be something which renders cohabitation unsafe, or is attended with injury to the person, or to the health of

i Parliament, as well as the Ecclesiastical Courts, always obliged the husband to find means, when necessary, for suing against him, or resisting his proceedings ; so will the new Court, no doubt, enforce a similar obligation,

. Sec. 27.
3 In the new act called “judicial separation."
· Evans v. Evans, 1 Hagg. 37.

the party, to call for the interference of the Court. Words of menace, leading to a reasonable fear of personal injury, are sufficient. Deprivation of proper food and fuel was treated as cruelty,2 and an attempt to debauch female servants is considered gross cruelty.

5. But " cruelty committed by a husband upon the wife, provoked by her own misconduct, is not such cruelty as, without adultery, would formerly have entitled the wife to a divorce à mensá et thoro,"3 and will therefore not now be available for her in seeking a divorce under the new law. Redress is afforded only on the assumption that she has not been the authoress of all her own sufferings. If her conduct has been improper, the remedy is in her own hands-she must change it ; otherwise the wife would have nothing to do but misconduct herself, provoke the ill treatment, and then complain. But it is not meant that the law would not interfere if misconduct is visited by the husband with intemperate violence.

6. The fourth offence, “Desertion, without reasonable excuse, for two years and upwards." We must again refer the reader back to the observation in the preceding chapter, under the heads “Desertion,”and “Wilful separation." To what is there offered we will add, it is not the policy of the law to make a husband liable to be called upon by his wife to account for his absence, and that failing to assign an excuse satisfactory to her reason, that the offence should be complete. It will rather lie upon the wife to show that the absence is, malicious—for the deliberate purpose of abandoning the conjugal society. When the husband has taken a mistress with him, it would be nearly impossible to imagine a reasonable cause for being absent from his wife, yet able to cohabit with the mistress. In such a case malice may be inferred.

7. We may repeat, that a wife is entitled to proceed for divorce for the incestuous adultery of her husband; or for adultery not incestuous if coupled with, at least,

1 Durrant v. Durrant, 1 Hagg. 767.
? Westmeath v. Westmeath.
3 Waring v. Waring, 2 Phill. 132,

one of the offences before enumerated. We shall next see how her remedy may be barred.

8. The bars to divorce, eleven in number, are the same as in proceedings by the husband. They are

1, Having been accessory to the adultery ; 2, Connivance; 3, Collusion; 4, Condonation ; 5, Recrimination ; 6, Cruelty ; 7, Desertion; 8, Wilful separation ; 9, Wilful neglect; 10, Misconduct; 11, Unreasonable delay. The observations we have already made upon these several topics, apply, in principle, if not in terms, equally to the proceedings under consideration as to where the husband is the party seeking relief; except, indeed, a few which manifestly apply to the case of the husband only. On the whole, the nature of the several offences being defined, the re will not be any difficulty in deducing inferences as to what would constitute an offence of the same character on the part of the wife. Indeed, the substitution of the word " wife” for “ husband” will, in many instances, be sufficient. To avoid repetition, we shall, therefore, be content with directing the reader's attention to those observations; and with making a few passing comments on the fourth bar.

9. Condonation is justly held less stringent in the wife. It is a merit in her to bear, and endeavour to reclaim. It is not her duty, till compelled by the last extremity, to have recourse to legal remedies. Therefore, under circumstances, returning to the husband's bed was held not to be a condonation of previous cruelty. The law will make great allowance for the situation in which a wife is placed; without the means of leaving her husband; generally of habits of indecision; in most instances unwilling to drive matters to an extremity ; in all, where there is a family, having before her eyes the prospect of a separation from her children, and of leaving them under the guardianship of one from whom they are not likely to derive much attention or beneficial instruction. These considerations must be allowed to weigh in such cases; and

[ocr errors]
« EelmineJätka »