CHAPTER XXXIII.

DIVORCE.

Definition-Divorce from Bed and Board-Absolute Divorce-Decree of Nullity-Decree Nisi-Effect of Absolute Decree No Decree Given by Default or Agreement of Parties-No Decree Given if Collusion Appears-Divorce Jurisdiction-Massachusetts Rule as to Jurisdiction-Fraud as to Domicil.

Definition of Divorce.

Divorce may be defined to be the legal suspension or dissolution of the marital relation.

Divorce from Bed and Board.

There are two kinds of divorce. The first is divorce "from bed and board," which is a decree of legal separation, giving no right of marrying again to either party, and leaving to each the interest in the other's property which the marriage gave. Such a decree has no effect whatever, in short, upon the marriage relation, except to give the right of living apart until a reconciliation may be effected, when the parties may resume cohabitation without taking further legal action. In a few states, such a decree may be given for a limited time, but it is generally indefinite in this respect.

Absolute Divorce.

The second is absolute divorce "from the bonds of matrimony," which is the only genuine divorce, and by which the marriage is entirely dissolved.

Decree of Nullity.

There is also a decree of nullity which may be given in cases where the marriage itself was, for some reason, void or voidable; and by which it is judicially declared that the parties were never legally married.

Most states provide by statute concerning the legitimacy of children of such void or voidable marriages. Thus in Massachusetts, it is provided that, when a marriage is declared void by reason of affinity or consanguinity between the parties, the children are illegitimate; when on account of the nonage, insanity or idiocy of one party, children are legitimate issue of the other party who was capable of contracting the marriage; and when on account of a prior marriage of either party, if the second marriage was contracted in good faith, and in full belief that the former husband or wife was dead, the children of the second marriage are the legitimate issue of the parent who was capable of contracting it.

stance.

A Decree Nisi.

In some states, a decree nisi is given in the first inThat is, it is decreed that the parties are at once separated, and that a decree of absolute divorce may be given at some future time, unless the parties become reconciled meanwhile. It is a sort of probationary separation, like that from bed and board; and if the parties should wish to resume the marriage relation before the absolute decree is given, they

may do so at any time, without any further ceremony or legal action.

If a decree nisi is given without fixing the time when it is to become absolute, and if no statute fixes it, an application to the court must be subsequently made, asking that it be made absolute.

If given for a stated time, it is generally provided, as in Maine and Massachusetts, that objection to a final decree may be made during the probationary period by any one whose interests would be affected by the result. Such a party, by showing good cause, may in some cases prevent the final decree from being given. Such application may be made by either of the immediate parties to the suit, or by any one else whose pecuniary or family interests would be affected by the divorce.

Effect of Absolute Decree.

After an absolute decree of divorce is entered, the parties can assume marriage relations with each other only by being remarried; otherwise they would be criminally liable. They are generally free to marry other parties, as shown in the last chapter, the only exceptions being in a few states where, by statute, the guilty party is prohibited from marrying during a stated time, or absolutely prohibited unless leave of court be obtained.

No Decree Given by Default.

In most other legal actions, the parties may agree upon a verdict which shall bind both. Or by failing to put in an appearance when the cause comes up for trial, the defendant may allow the decision to be given against him, and in such case, the plaintiff need

put in no evidence, the absence and silence of the defendant being enough to give him "judgment by default," as it is termed.

But where the action is for divorce, the parties themselves are not the only ones concerned, for it is a matter of gravest public interest to preserve the sanctity of the marriage relation; and the party who applies for a divorce must, therefore, prove every allegation which it is essential that he should make, to the entire satisfaction of the court, precisely as he would prove it if the other party were opposing the action. The court acts, in a measure, in behalf of the non-contesting party-or rather, of the public, whose interest it is to have no divorces given lightly, or on insufficient grounds.

Effect of Collusion.

On this principle, the court is on the alert to discover any indications of collusion between the parties; and if the evidence shows anything in the nature of a mutual agreement for a divorce between them, no decree will be given.

Confessions of the defendant, either in court or out, are not sufficient evidence-unless in rare instances— to justify a divorce. The wrong-doing must also be proven by other testimony.

Divorce Jurisdiction.

It is customary in all states to make some provision regulating the classes of persons over whom the courts will take divorce jurisdiction, for it is not the policy of the law to allow people to leave their own states, and go to others where the divorce laws may be more elastic, for no other purpose than that of relieving themselves of their marriage bonds.

These regulations are not at all uniform in the different states, except in one particular. Every state requires that a party who seeks a divorce therein shall be a citizen of that state, and shall have made his or her domicil there for a specified time. [See further as to Domicil, Chapter 18.] In some states, one year's residence is considered sufficient proof of domicil. In others, a longer time is required, and in a few, six months is enough. [See Abstracts, Title "Divorce."]

Massachusetts Rule as to Jurisdiction.

In the statutes of Massachusetts there are two sections regulating this matter of jurisdiction as follows: "Sect. 4. Except as provided in the following section, no divorce shall be decreed if the parties have never lived together as husband and wife in the Commonwealth; nor shall a divorce be decreed for a cause occurring in another state or country, unless, before such cause occurred, the parties had lived together as husband and wife in the Commonwealth, and one of them lived in the Commonwealth at the time when the cause occurred.

"Sect. 5. When the libellant has resided in the Commonwealth for five years next preceding the filing of the libel; or, if the parties were inhabitants of the Commonwealth at the time of their marriage, when the libellant has been such an inhabitant for three years next preceding such filing, a divorce may be decreed for any cause allowed by law, whether it occurred in the Commonwealth or elsewhere, unless it appears that the libellant has removed into the Commonwealth for the purpose of obtaining a divorce.”

In other words, if both parties had their regular marriage domicil in Massachusetts at the time when