when the above terms are used. But other expressions, as petitioner and defendant, plaintiff and defendant, and applicant and defendant, are used in other states to designate the parties to such a suit, and must be so understood if they occur in the abstracts of statutory law on the subject.

CHAPTER XXXV.

DIVORCE, CONTINUED.

Principal Defences to a Divorce Suit-Collusion-Connivance-Condonation — Recrimination - Adultery of Applicant is Absolute Defence-Cross Action of Divorce-Delay and Insincerity-Doctrine of Domicil --Utah Divorces-Ignorance of the Law No Excuse -Wife's Domicil.

Principal Defences to Divorce Suit.

The principal defences to a divorce suit are collusion; connivance; condonation; recrimination; delay and insincerity.

Collusion.

[See

Collusion has already been referred to. Chapter 32.] It is any agreement between the parties, that one of them shall apply for, and secure a divorce. It is absolutely fatal to an application therefor.

Connivance.

Connivance is any consenting of the party who applies for a divorce to that wrong doing of the other, of which he complains. It bars a suit for divorce, because one cannot consent to a wrong against himself, and then complain of that wrong in court.

Condonation.

Condonation is any forgiving of a wrong by the party injured. Having once forgiven it, he cannot turn about and complain of it. It is sufficient evidence that the fault of one who has committed adultery, has been condoned by the other party, if, after the latter is aware of the fact, they continue to cohabit.

Therefore if a husband or wife learns with any certainty, that the other has committed adultery, and does not intend to forgive the offence, but to make it the ground of a divorce suit, it is essential that a separation should take effect immediately, without a day's delay. But a mere supposition, or mental conviction. that the wrong has been committed, is not sufficient. to justify an immediate separation. It may be delayed until reasonable proof can be granted; but having such proof, prompt action must be taken. The court is occasionally somewhat lenient to an innocent wife in such a case, for she may be delayed from immediate flight by entire lack of resources, and by fear of her husband. But it is not safe to rely on such a possibility, and no delay should ever be made.

Cruelty also may be condoned, so that no divorce. can afterward be obtained on account of it, though the rule does not apply with quite the same strictness in this case as in that already considered.

Recrimination.

It is a legal maxim that the plaintiff "must come into court with clean hands." That is, he must not have been himself in similar fault to that of which he accuses the defendant.

Therefore, if the applicant for a divorce has not performed his or her own marital duty, the defence of

recrimination may be set up by the defendant; and if proved, it will avail to prevent the divorce from being given. The fault of the applicant must, however, to bar the plaintiff's suit, have been such as would have given the defendant valid ground for divorce, had he chosen to avail himself of it.

Adultery of Applicant.

This defence of recrimination is absolute when the fault alleged by the defendant against the plaintiff is adultery. A party who has himself been thus guilty will never, in any court, be allowed a divorce from his marital partner for the same or for any other ground. It is less certain to what extent the allegation of cruelty, desertion or other cause may be set up as a defence in recrimination, but justice is always sought by the courts, and as a rule, successfully.

Cross Action.

Frequently, instead of putting in this defence, the defendant merely denies the truth of the charges against himself, and files a cross action of divorce against the other party, alleging as ground the matter which might have been set up as recrimination against the first suit. The two cases are then tried together, and the court will decide whether a divorce shall be given to one, or to the other, or to neither.

Delay and Insincerity.

Delay, as a defence, is based on the general legal maxim that "one should not sleep on his rights." He should always act promptly in demanding justice, delay being suggestive of insincerity, which is in itself a sufficient defence. To avail of it, however, it is

necessary to prove that the plaintiff is not, in good faith, acting under the weight of the alleged grievance, but for some ulterior purpose. But insincerity cannot often be set up in a divorce suit, and need not be further considered here.

Doctrine of Domicil.

One of the most important matters for consideration regarding divorce, is that of domicil. The general rule [See Chapter 32] is that no court has jurisdiction over any cause of divorce, unless at least one of the parties has an actual bona fide domicil within the state where the action is brought.

To gain a domicil in a place, one must actually live there (or be actually on his way there for the purpose of a residence), and he must have the intention of remaining there permanently. Later on, he may change. his mind a dozen times, and may change his domicil likewise, but if the intention of remaining has never in reality existed, no domicil has been gained, and a decree of divorce given upon the strength of such a residence merely, is subject to be opened up at any time in the future by proof of such lack of intention, and therefore lack of genuine domicil.

In many states the wording of the statute on the subject stipulates only for a "residence" for a certain time, in order to give divorce jurisdiction. But this word has been repeatedly construed by the courts to mean a domicil, and it must be thus construed, and a real domicil must have been gained and proved, in order to give a valid divorce. An attempt was at one time made in one of the Western states to construe the word liberally, so that mere residence might give divorce jurisdiction; but it utterly failed.