Page images
PDF
EPUB

the ordinary settlement on the marriage, it is presumed, must fail.

5. On any of the following grounds the Court will make such decree. Marriage within the prohibited degrees of consanguinity or affinity. Marriage contracted under the ages for consent-14 years for the male and 12 years for the female ; or under the influence of fraud or force, or by mistake. In the cases mentioned the marriages would be considered void from the beginning, and the decree of the Court would be not dissolving the marriage-for there never was a lawful union-but siinply declaring that the supposed ceremony of marriage was a nullity.

6. Voidable marriages differ from void marriages. The former are good until by a decree, which can only be pronounced in the lifetime of both the parties to the marriage, they are declared bad; but the latter are void and must always continue so, nothing can get over the defect. Impotence of either party at the time of the marriage, is sufficient to entitle the petitioner to a decree dissolving the marriage tie as voidable.

7. Any party having an interest, specific or pecuniary, will be entitled to sustain a suit for nullity, by reason of the prohibited degrees. Indeed it is not by either of the parties to the marriage that suits to have marriages declared void are usually brought, but by persons interested in the succession of property or estates, and generally long after the death of the parties.

8. Jactitation of marriage need be referred to here only to explain its meaning. The term means, to have silence enjoined upon one person who falsely boasts of being married to another. Since consensual marriages have been abolished, the Court will not likely be troubled under this head.

Sherwood v. Ray, 1 Moore P. C. Ca. 353.

CHAPTER VII.

JUDICIAL SEPARATION-PROTECTION OF WIFE'S

EARNINGS.

1. Judicial separation similar to divorce a mensa et thoro.
2. To be applied for by petition.
3. Decree to be granted.
4. Alimony to wife-maintenance of children.
5. Custody of children, fc.
6. Grounds for obtaining judicial separation.
7. Bars to the remedy.
8. Wife's new social status.
9. She must sue and be sued as a feme sole.
10. Husband not liable for her acts or contracts.
11. Decree may be reversed.
12. Appeal to full Court.
13. Protection of wife's earnings-Order, &c.
14. Reversal of order.

1. Judicial separation, with some great improvements, will have the effect of a divorce a mensa et thoro. Unlike the present divorce, it can be terminated at any time by the reconciliation of the parties.

2. The application for judicial separation may be made by either husband or wife, by petition to the Court, stating the grounds upon which he or she is entitled to obtain the separation.2

3. The Court, on being satisfied of the truth of the allegations therein contained, and that there is no legal

? For Form of petition, see Appendix, p. 93.

* If the petition be by the husband, and on the ground of adultery, he may claim damages from the alleged adulterer. Sec. 33.

ground why the same should not be granted, may decree judicial separation accordingly.

4. Where the application is by the wife, the Court may make any order for alimony that shall be deemed just;' and may make such interim orders, and such provision in the final decree as it may deem fit and pro.. per, with respect to the custody, maintenance, and education of the children (if any) of the marriage, or may have such children placed under the wardship of the Court of Chancery.

5. The observations we have made in the preceding chapter as to the custody, care, maintenance, and education of children, and the amount of the provision the wife is entitled to, and also in reference to adultery, cruelty, and desertion, applying equally to the cases of judicial separation, therefore we shall not repeat them. Where the wife is the injured party, and a decree for judicial separation is granted, a much larger allowance will be made for permanent alimony, than for alimony during the proceedings. The Ecclesiastical Courts were in the habit of giving about one-third of the husband's income in such cases. But they generally gave a larger proportion when the income was large than when it was small, except in cases where the husband derived his income from his own personal exertions.?

If a material alteration in circumstances of the husband takes place for the better or for the worse, a change in the rate of alimony may be ordered by the Court, upon the application of either party.

The Court may not think it right in all cases to order the payment of alimony to be made direct to the wife, but may require the intervention of a trustee for her benefit.

6. The grounds upon which judicial separation may be obtained by either husband or wife are adultery, cruelty, or desertion without cause for two years or upwards. 3

7. The Bars to judicial separation are not defined by the statute. The 17th sec. merely saying, the Court on

i Sec. 17. • Coode v. Coode, 2 Phill. 44.
3 Sec. 16.

being satisfied of the truth of the allegations, and that there is no legal ground why the same should not be granted, may decree such judicial separation accordingly. But we apprehend the bars to divorce, form the legal grounds contemplated by the legislature. See Bars to divorce, ante chapter II.

8. From the date of the sentence, the wife is placed in a position unknown to the law, until the passing of the present statute. She is, although still a married woman, to be considered a feme sole with respect to any property she may require, or which may come to or de. volve upon her; and should she again cohabit with her husband, all such property as she may be entitled to, when such cohabitation shall take place, shall be held to ber separate use ; subject, however, to any agreement made between herself and her husband whilst separate."

9. The wife shall, whilst separated, be considered a feme sole for the purposes of contract, and wrongs, and injuries, and suing and being sued in any civil proceedings.2

10. The husband shall not be liable in respect to any engagement or contract she may have entered into, or any wrongful act or omission by her, or for any costs she may incur as plaintiff or defendant; provided that where alimony is decreed to be paid to the wife, and same shall not have been duly paid by the husband, he shall be liable for necessaries supplied to her use.3

11. A decree of separation obtained during the absence of either husband or wife, on the ground of desertion, may be reversed upon the petition of the party against whom such decree was obtained, if the Court are satisfied that there was reasonable ground for such absence. But the reversal thereof is not to affect the rights of third parties.

12. An appeal to the full Court may be made by either party from the decision of the Judge-Ordinary alone.5

[blocks in formation]

13. By the 21 section of the Act, a wife deserted by her husband may obtain from the Court an order protecting against her husband and his creditors all money, or property, which she may have acquired since the desertion. The application may be made exparte, and without notice to the husband or his creditors. Although an order of this kind puts the wife in the position of a feme sole in the respect to her earnings, contracts, and suing and being sued, it does not deprive the husband of his right to cohabit with her whenever he chooses to return home; nor by the subsequent cohabitation does the order become inoperative. In these two respects appears to lie the main distinction between the effect of the judicial separation and the order protecting the wife's earnings and property.

14. Either the husband, or any creditor of his, may, upon reasonable grounds, apply to have the order disharged.

« EelmineJätka »