which may, aggregately, constitute the offense, cohabitation, or passive endurance, or conjugal kindness shall not be evidence of condonation of any of the acts constituting such cause unless accompanied by an express agreement to condone. En. March 21, 1872. Am'd. 1873-4, 190. Cal.Rep.Cit. 117, 447; 119, 188; 119, 192; 132, 476. § 119. Condonation can only be made when. In cases mentioned in the last section, condonation can be made only after the cause of divorce has become complete, as to the acts complained of. En. March 21, 1872. Am'd. 1873-4, 190. § 120. Concealment of facts in certain cases makes condonation void. A fraudulent concealment by the condonee of facts constituting a different cause of divorce from the one condoned, and existing at the time of condonation, avoids such condonation. En. March 21, 1872. § 121. Condonation, how revoked. Condonation is revoked and the original cause of divorce revived: 1. When the condonee commits acts constituting a like or other cause of divorce; or, 2. When the condonee is guilty of great conjugal unkindness, not amounting to a cause of divorce, but sufficiently habitual and gross to show that the conditions of condonation had not been accepted in good faith, or not fulfilled. En. March 21, 1872. Cal.Rep.Cit. 120, 189; 121, 12. § 122. Recrimination, what. Recrimination is a showing by the defendant of any cause of divorce against the plaintiff, in bar of the plaintiff's cause of divorce. En. March 21, 1872. Cal.Rep.Cit. 63, 353; 74, 492; 119, 189. § 123. Condonation, when to bar defense. Condonation of a cause of divorce, shown in the answer as a recriminatory defense, is a bar to such defense, unless the condonation be revoked, as provided in section one hundred and twenty-one, or two years have elapsed after the condonation, and before the accruing or completion of the cause of divorce against which the recrimination is shown. En. March 21, 1872. Am'd. 1873-4, 190. $124. Divorces denied, when. A divorce must be denied: 1. When the cause is adultery, and the action is not commenced within two years after the commission of the act of adultery, or after its discovery by the injured party; or, 2. When the cause is conviction of felony, and the action is not commenced before the expiration of two years after a pardon, or the termination of the period of sentence. 3. In all other cases when there is an unreasonable lapse of time before the commencement of the action. En. March 21, 1872. Am'd. 1873-4, 191. Cal.Rep.Cit. 74, 613; 104, 296. Subd. 3—121, 12. $ 125. Lapse of time establishes certain presumptions. Unreasonable lapse of time is such a delay in commencing the action as establishes the presumption that there has been connivance, collusion or condonation of the offense, or full acquiescence in the same, with intent to continue the marriage relation, notwithstanding the commission of such offense. En. March 21, 1872. Cal.Rep.Cit. 121, 12. § 126. Presumptions may be rebutted. The presumptions arising from lapse of time may be rebutted by show. ing reasonable grounds for the delay in commencing the action. En. March 21, 1872. § 127. Limitation of time. There are no limitations of for divorce, except such as are contained in section 124. En. March 21, 1872. time for commencing actions § 128. Residence of plaintiff. A divorce must not be granted unless the plaintiff has been a resident of the state for one year, and of the county in which the action is brought three months next preceding the commencement of the action. En. March 21, 1872. Am'd. 1891, 52. Cal.Rep. Cit. 74, 613; 100, 13; 100, 15; 100, 17; 128, 332. § 129. Proof of actual residence required. Presumptions do not apply. In actions for divorce the presumption of law, that the domicile of the husband is the domicile of the wife, does not apply. After separation, each may have a separate domicile, depending for proof upon actual residence, and not upon legal presumpticns. 1872. Cal. Rep. Cit. 66, 310; 128, 274; 132, 92. En. March 21, § 130. Divorce not to be granted by default, etc. No divorce can be granted upon the default of the defendant, or upon the uncorroborated statement, admission, or testimony of the parties, or upon any statement or finding of fact made by a referee; but the court must, in addition to any statement or finding of the referee, require proof of the facts alleged, and such proof, if not taken before the court, must be upon written questions and answers. En. March 21, 1872. Am'd. 1873-4, 191. Cal Rep.Cit. 49, 94; 63, 580; 65, 355; 67, 24; 74, 614; 86, 221; 88, 48; 94, 227; 120, 37; 120, 186; 124, 58. § 131. Interlocutory judgment. In actions for divorce the court must file its decision and conclusions of law as in other cases, and if it determines that no divorce shall be granted, final judgment must thereupon be entered accordingly. If it determines that the divorce ought to be granted an interlocutory judgment must be entered, declaring that the party in whose favor the court decides is entitled to a divorce, and from such interlocutory judgment an appeal may be taken within six months after its entry, in the same manner and with like effect as if the judgment were final. En. Stats. 1903, 75. 132. Final judgment after one year. When one year has expired after the entry of such interlocutory judgment, the court on motion of either party, or upon its own motion, may enter the final judgment granting the divorce, and such final judgment shall restore them to the status of single persons, and permit either to marry after the entry thereof; and such other and further relief as may be necessary to complete disposition of the action, but if any appeal is taken from the interlocutory judgment or motion for a new trial made, final judgment shall not be entered until such motion or appeal has been finally disposed of, nor then, if the motion has been granted or judgment reversed. The death of either party after the entry of the interlocutory judgment Goes not impair the power of the court to enter fina! judginent as herein before provided; but such entry shall not validate any marriage contracted by either party before the entry of such final judgment, nor constitute any defense of any criminal prosecution made against either. En. Stats. 1903, 76. ARTICLE IV. GENERAL PROVISIONS. Relief may be adjudged in some cases, where separation is denied. Expense of action, alimony. Orders respecting custody of children. Support of wife and children on divorce or separation granted to wife. Security for maintenance and alimony. Court shall resort to what, in executing certain sections. If wife has sufficient for her support, court may withhold allowance. Community and separate property may be subjected to support and educate children. Legitimacy of issue. Same. Disposition of community property on divorce. Same. 148. Such an action subject to revision on appeal. § 136. Relief may be adjudged in some cases, where separation is denied. Though judgment of divorce is denied, the court may, in an action for divorce, provide for the maintenance of the wife and her children, or any of them by the husband. En. March 21, 1872. Cal.Rep.Cit. 68, 589; 68, 590; 74, 611; 74, 612; 74, 614; 79, 338; 79, 339; 124, 53; 124, 54; 124, 55; 126, 126; 126, 127; 126, 129. Alimony generally: See next section. § 137. Expense of action, alimony. When an action for divorce is pending, the court may, in its discretion, require the husband to pay as alimony any money necessary to enable the wife to support herself or her children, or to prosecute or defend the action. When the husband willfully deserts the wife, she may, without applying for a divorce, maintain in the superior court an action against him for permanent support and maintenance of herself or of herself and children. During the pendency of such action the court may, in its discretion, require the husband to pay as alimony any money necessary for the prosecution of the action and for support and maintenance, and executions may issue therefor in the discretion of the court. The final judgment in such action may be enforced by the court by such order or orders as in its discretion it may from time to time deem necessary, and cuch order or orders may be varied, altered or revoked at the discretion of the court. En. March 21, 1872. Am'd. 1877-8, 76; 55, 320; 67, 177; 67, 201; 67, 203; 75, 38; 83, 463; 91, 431; 95, 342; 97, 126; 99, 621; 100, 494; 104, 47; 104, 297; 117, 634; 1880, 4. Cal.Rep.Cit. 79, 339; 97, 127; 98, 321; 109, 545; 109, 649; 113, 271; 115, 273; 115, 275; 122, 397; 123, 654; 124, 395; 124, 397; 126, 125; 126, 126; 126, 127; 126, 128; 126, 129; 135, 125; 136, 304; 137, 226. See sec. 139, infra. § 138. Orders respecting custody of children. In an action for divorce the court may, before or after judgment, give such direction for the custody, care, and education of the children of the marriage as may seem necessary or proper, and may at any time vacate or modify the same. En. March 21, 1872. Cal.Rep.Cit. 95, 377; 104, 48; 105, 261; 106, 380; 114, 545; 118, 21; 120, 146; 120, 147; 125, 68; 125, 69; 125, 70; 135, 193; 137, 495. Exclusive control of child without divorce: Secs. 199, 214. Awarding custody of child, considerations that should guide the court: See, post, sec. 246. § 139. Support of wife and children on divorce or separation granted to wife. Where a divorce is granted for an offense of the husband, the court may compel him to provide for the maintenance of the children of the marriage, and to make such suitable allowance to the wife for her support, during her life, or for a shorter period, as the court may deem just, having regard to the circumstances of the parties respectively; and the court may, from time to time, modify its orders in these respects. En. March 21, 1872. 79, 515; Cal Rep.Cit. 52, 384; 59, 418; 75, 46; 79, 602; 79, 603; 82, 112; 83, 463; 83, 465; 94, 255; 95, 377; 102, 440; 104, 47; 105, 261; 114, 545; 114, 547; 124, 588; 125, 68. Compare with sec. 148. Civ. Code-3 |