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STATUTES 20 & 21 VIC., O. 85. An Act to amend the Law relating to Divorce and Matrimonial
Causes in England.
[28th August, 1857.] WHEREAS it is expedient to amend the Law relating to Divorce, and to constitute a Court with exclusive jurisdiction in matters Matrimonial in England, and with Authority in certain Cases to decree the Dissolution of a Marriage : Be it therefore enacted by the Queen's most Excellent Majesty, by and with the Advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the Authority of the same, as follows :
1. This Aot shall come into operation on such Day, not sooner than the First Day of January, One thousand eight hundred and fifty-eight, as Her Majesty shall by Order in Council appoint, provided that such Order be made One Month at least previously to the Day so to be appointed.
2. As soon as this Act shall come into operation, all Jurisdiction now exerciseable by any Ecclesiastical Court in England in respect of Divorces a Mensa et Thoro, Suits of Nullity of Marriage, Suits of Jactitation of Marriage, Suits for Restitution of Conjugal Rights, and in all Causes, Suits, and Matters Matrimonial, shall cease to be so exerciseable, except so far as relates to the granting of Marriage Licences, which may be granted as if this Act had not been passed.
3. Any Decree or Order of any Ecclesiastical Court of competent Jurisdiction which shall have been made before this Act comes into operation, in any Cause or Matter Matrimonial, may be enforced or otherwise dealt with by the Court for Divorce and Matrimonial Causes herein-after mentioned, in the same way as if it had been originally made by the said Court under this Act.
4, All Suits and Proceedings in Causes and Matters Matri. monial which at the Time when this Act comes into operation shall be pending in any Ecclesiastical Court in England shall be transferred to dealt with, and decided by the said Court for Divorce and Matrimonial Causes as if the same had been origi. nally instituted in the said Court.
5. Provided, That if at the Time when this Act comes into operation any Cause or Matter which would be transferred to the said Court for Divorce and Matrimonial Causes under the enactment hereinbefore contained shall have been heard before any Judge having jurisdiction in relation to such Cause or Matter, and be then standing for Judgment, such Judge may at any Time within Six Weeks after the Time when this Act comes into operation give in to One of the Registrars attending the Court for Divorce and Mairimonial Causes a written Judgment thereon signed by him; and a Decree or Order, as the case may require, shall be drawn up in pursuance of such Judgment, and every
such Decree or Order shall have the same force and effect as if it had been drawn up in pursuance of a Judgment of the Court for Divorce and Matrimonial Causes on the day on which the same was delivered to the Registrar, and shall be subject to appeal under this Act.
6. As soon as this Act shall come into operation, all Jurisdiction now vested in or exerciseable by any Ecclesiastical Court or person in England in respect of Divorces a Mensa et Thoro, Suits of Nullity of Marriage, Suits for Restitution of Conjugal Rights, or Jactitation of Marriage, and in all Causes, Suits, and Matters Matrimonial, except in respect of Marriage Licences, shall belong to and be vested in Her Majesty, and such Jurisdiction, together with the Jurisdiction conferred by this Act, shall be exercised in the Name of Her Majesty in a Court of Reoord to be called “ The Court for Divorce and Matrimonial Causes.”
7. No Decree shall hereafter be made for a Divorce a Mensa et Thoro, but in all cases in which a Decree for a Divorce a Mensa et Thoro might now be pronounced the Court may pronounce a Decree for a Judicial Separation, which shall have the same force and the same consequences as a Divorce a Mensa et Thoro now has.
8. The Lord Chancellor, the Lord Chief Justice of the Court of Queen's Bench, the Lord Chief Justice of the Court of Common Pleas, the Lord Chief Baron of the Court of Exchequer, the Senior Puisne Judge for the Time being in each of the Three last-mentioned Courts, and the Judge of Her Majesty's Court of Probate constituted by any Act of the present Session, shall be the Judges of the said Court.
9, The Judge of the Court of Probate shall be called the Judge Ordinary of the said Court, and shall have full Authority, either alone or with one or more of the other Judges of the said Court, to hear and determine all Matters arising therein, except Petitions for the dissolving of or annulling Marriage, and Applications for new Trials of Questions or Issues before a Jury, Bills of Exception, Special Verdicts, and Special Cases, and, except as aforesaid, may exercise all the Powers and Authority of the said Court.
10. All Petitions, either for the Dissolution or for a Sentence of Nullity of Marriage, and Applications for new Trials of Questions or Issues before a Jury, shall be heard and determined by Three or more Judges of the said Court, of whom the Judge of the Court of Probate shall be One.
11. During the temporary absence of the Judge Ordinary, the Lord Chancellor may by writing under his hand authorize the Master of the Rolls, the Judge of the Admiralty Court, or either of the Lords Justices, or any Vice-Chancellor, or any Judge of the Superior Courts of Law at Westminster, to act as Judge Ordinary of the said Court for Divorce and Matrimonial Causes, and the Master of the Rolls, the Judge of the Admiralty Court, Lord Justice, Vice-Chancellor, or Judge of the Superior Courts, shall, when so acting, have and exercise all the Jurisdiction, Power, and Authority which might have been exercised by the Judge Ordinary.
12. The Court for Divorce and Matrimonial Causes shall hold its Sittings at such Place or Places in London or Middlesex or elsewhere as Her Majesty in Council shall from time to time appoint.
13. The Lord Chancellor shall direct a Seal to be made for the said Court, and may direct the same to be broken, altered, and renewed, at his discretion; and all Decrees and Orders, or copies of Decrees or Orders, of the said Court, sealed with the said Seal, shall be received in Evidence.
14. The Registrars and other Officers of the Principal Registry of the Court of Probate shall attend the Sittings of the Court for Divorce and Matrimonial Causes, and assist in the Proceedings thereof, as shall be directed by the Rules and Orders under this Act.
15. All Persons admitted to practise as Advocates or Proc. tors respectively in any Ecclesiastical Court in England, and all Barristers, Attornies, and Solicitors entitled to practise in the Superior Courts at Westminster, shall be entitled to practise in the Court of Divorce and Matrimonial Causes; and such Advocates and Barristers shall have the same relative Rank and Precedence which they now have in the Judicial Committee of the Privy Council, unless and until Her Majesty shall otherwise order.
16. A Sentence of Judicial Separation (which shall have the effect of a Divorce a Mensa et Thoro under the existing Law, and such other legal effect as herein mentioned,) may be obtained, either by the Husband or the Wife, on the ground of Adultery, or Cruelty, or Desertion without Cause for Two Years and upwards.
17. Application for Restitution of Conjugal Rights or for judicial separation on any one of the grounds aforesaid may be made by either husband or wife, by petition to the Court, or to any Judge of assize at the assizes held for the county in which the husband and wife reside or last resided together, and which judge of assize is hereby authorized and required to hear and
determine such petition, according to the rules and regulations which shall be made under the authority of this act; and the Court or Judge to which such petition is addressed, on being satisfied of the truth of the allegations therein contained, and that there is no legal ground why the same should not be granted, may decree such restitution of conjugal rights or judicial separation accordingly, and where the application is by the wife may make any order for alimony which shall be deemed just : provided always, that any judge of assize to whom such petition shall be presented may refer same to any of her Majesty's counsel or serjeant at law named in the commission of Assize or Nisi Prius, and such counsel or serjeant shall, for the purpose of deciding upon the matters of such petition, have all the powers that any such judge would have had by virtue of this act or otherwise.
18. For the pnrpose of hearing and deciding all applications under the authority of this act, the judge of assize or person nominated by him as aforesaid shall be entitled to avail himself of the services of all officers, and use and exercise all powers and authorities, which the court of assize may employ, use, and exercise for the determination of causes and other matters now usually heard and decided by them respectively, and the said judge of assize or other person shall also for the purpose have and be entitled to exercise all the powers and authorities hereby given to the Court for the hearing and deciding applications made to it, and also the powers hereby given to the Court to make provision touching the custody, maintenance, and education of children ; and every order made by any judge of assize or other person under the authority of this act may, on the application of the person obtaining the same, be entered as an order of the court, and when so entered shall have the same force and effect, and be enforced in the same manner, as if such order had been originally made by the court.
19. The court shall from time to time fix and regulate the fees which shall be payable upon all proceedings under any application to a judge of assize under this act; and such fees shall be received in money, for their own benefit, by the persons to whom or for whose use the same shall be directed to be paid.
20. Any order so entered as aforesaid may be reviewed, and either altered or reversed on appeal to the Judge Ordinary of the Court, but such appeal shall not stay the intermediate execution of the order, unless the Judge Ordinary shall so direct, who shall have power, if such appeal be dismissed or abandoned, to order the appellant to pay to the other party the full costs incurred by reason of such appeal.
21. A wife deserted by her husband may at any time after such desertion, if resident within the metropolitan district, apply to a police magistrate, or, if resident in the country, to justices in petty sessions, or in either case to the court, for an order to protect any money or property she may acquire by her own lawful industry, and property which she may become possessed of, aftur such desertion, against her husband or his creditors, or any person claiming under him; and such magistrate or justice or court, if satisfied the fact of such desertion, and that the same was without reasonable cause, and that the wife is maintaining herself by her own industry or property, may make and give to the wife an order protecting her earnings and property acquired since the commencement of such desertion, from her husband and all creditors and persons claiming under him, and such earnings and property shall belong to the wife as if she were a feme sole: provided always, that every such order, if made by a poliee magistrate or justices at petty sessions, shall, within ten days after the making thereof, be entered with the registrar of the county court within whose jurisdiction the wife is resident; and that it shall be lawful for the husband, and any creditor or other person claiming under him, apply to the court, or to the magistrate or justices by whom such order was made, for the discharge thereof : provided also, that if the husband or any creditor of
or person claiming under the husband shall seize or continue to hold any property of the wife after notice of any such order, he shall be liable, at the suit of the wife (which she is hereby empowered to bring), to restore the specific property, and also a sum equal to double the value of the property so seized or held after such notice as aforesaid : If any such order of protection be made, the wife shall, during the continnance thereof, be, and be deemed to have been, during such desertion of her, in the like position in all respects, with regard to property and contracts, and suing and being sued, as she would be under this act if she obtained a decree of judicial separation.
22. In all suits and proceedings, other than proceedings to dissolve any marriage, the said Court shall proceed and act and give relief on principles and rules which in the opinion of the said Court shall be as nearly as may be conformable to the principles and rules on which the Ecclesiastical Courts have heretofore acted and given relief, but subject to the provisions herein contained, and to the rules and orders under this act.
23. Any husband or wife, upon the application of whose wife or husband, as the case may be, a decree of judicial separation has been pronounced, may, at any time thereafter, present a petition to the Court praying for a reversal of such decree on the ground that it was obtained in his or her absence, and that there was reasonable ground for the alleged desertion, where desertion was the ground of such decree ; and the Court may, on being satisfied of the truth of the allegations of such petition, reverse the decree accordingly, but the reversal thereof shall not prejudice or affect the rights or remedies which any other person would have had in case such reversal had not been decreed, in respect of any debts, contracts, or acts of the wife incurred, entered into, or done between the times of the sentence of separation and of the reversal thereof.
24. In all cases in which the Court shall make any decree or order for alimony, it may direct the same to be paid either to the wife herself or to any trustee on her behalf, to be approved by the Court, and may impose any terms or restrictions which to the Court may seem expedient, and may from time to time appoint