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Causes for divorce.

Adultery

defined.

2 Kelly, p. 191; Taylor Civ. Law, p. 359; 2 Kent's Com., p. 103. In England, until 1857, no authority existed in any of the Judicial Courts to grant a divorce; the subject belonged to the Ecclesiastical Courts, which granted divorces from "bed and board" and pronounced sentences of nullity, but they had no power to dissolve a marriage valid and binding in its origin for causes arising subsequent to its solemnization, Parliament alone exercising that power.-2 Burns' Eccl. Law, p. 202; McQueen, Parl. Pract., p. 470. By the statute of 20 and 21 Vict. (1857), Ch. VIII, a Court was created called "The Court for Divorce and Matrimonial Causes," upon which was conferred all jurisdiction over matrimonial matters then vested in the Ecclesiastical Courts, or theretofore exercised by Parliament. In the United States it was once common for the State Legislatures, like the English Parliament, to grant divorces by special Act, but it is believed that at the present time the power to grant divorces is conferred by statute in all of the States upon Courts of equity, or Courts possessing equity powers. Section 26, Article IV, of the Constitution of California, prohibits, in express terms, the Legislature from granting divorces; and a similar provision exists in the Constitutions of many other States of the Federal Union.

92. Divorces must be granted for any of the following causes:

1. Adultery;

2. Extreme cruelty;

3. Willful desertion;

4. Willful neglect;

5. Habitual intemperance;
6. Conviction of felony.

93. Adultery is the voluntary sexual intercourse of a married person with a person other than the offender's husband or wife.

NOTE.-Unlawful voluntary sexual intercourse between two persons, one of whom at least is married, is the essence of the offense. It is sufficient if either party is married; the offense of the married party will be adultery, and that of the unmarried fornication.—1 Leate's Penn., p. 6; 2 Dall. Penn., p. 125. In Massachusetts, however, by statute, and in some of the other States, if the woman be married, though the man be

unmarried, he is guilty of adultery; 21 Pick., p. 509;
2 Blackf., p. 318; 18 Ga., p. 264; 9 N. H., p. 515. In
Connecticut and some other States it seems that to con-
stitute the offense of adultery the woman should be
married. Adultery is not by itself indictable at com-
mon law. 4 Black Com., p. 65; 5 Rand., p. 627; but
is left to the ecclesiastical Courts for punishment.

cruelty,

94. Extreme cruelty is the infliction of grievous Extreme bodily injury or grievous mental suffering upon the what." other by one party to the marriage.

NOTE.-Johnson vs. Johnson, 14 Cal., p. 459; Wand vs. Wand, 14 Cal., p. 512; Morris vs. Morris, 14 Cal., p. 76; Mahone vs. Mahone, 19 Cal., p. 626; Powelson vs. Powelson, 22 Cal., p. 358; Eidenmuller vs. Eidenmuller, 37 Cal. p. 364; Evans vs. Evans, 1 Hag. Con., p. 35; Waring vs. Waring, 2 Phillim., p. 132; Perry vs. Perry, 2 Paige, p. 501; Dysart vs. Dysart, 1 Robertson, p. 407; Butler vs. Butler, 1 Parsons, p. 329; Harratt vs. Harratt, 7 N. H., p. 196; Smedley vs. Smedley, 30 Ala., p. 714; Shurman vs. Shurman, 18 Texas, p. 521; Eshbach vs. Eshbach, 11 Harris Pa., p. 343; Shaw vs. Shaw, 17 Conn., p. 189; Johnson vs. Johnson, 4 Wis., p. 135.

what.

95. Willful desertion is the voluntary separation Desertion, of one of the married parties from the other with intent to desert.

NOTE.-Conant vs. Conant, 10 Cal., p. 249; Hardenberg vs. Hardenberg, 14 Cal., p. 654; Morrison vs. Morrison, 20 Cal., p. 431; Benkert vs. Benkert, 32 Cal. p. 467; 1 Bishop on Marriage and Divorce, Sec. 776.

how

96. Persistent refusal to have reasonable matrimo- Desertion, nial intercourse as husband and wife, when health or manifested. physical condition does not make such refusal reasonably necessary, or the refusal of either party to dwell in the same house with the other party, when there is no just cause for such refusal, is desertion.

strategem

who

97. When one party is induced, by the stratagem In case of or fraud of the other party, to leave the family dwell- or fraud, ing place, or to be absent, and during such absence commits the offending party departs with intent to desert the

desertion.

In case of cruelty. where one party leaves the other, who commits desertion.

Separation by consent

not

desertion.

Separation

and intent to desert

not always

other, it is desertion by the party committing the stratagem or fraud, and not by the other.

NOTE.-Bishop on Marriage and Divorce, Sec. 784.

98. Departure or absence of one party from the family dwelling place, caused by cruelty or by threats of bodily harm from which danger would be reasonably apprehended from the other, is not desertion by the absent party, but it is desertion by the other party. NOTE. This section is intended to settle a question discussed as doubtful in Bishop on Marriage and Divorce, Secs. 787, 791, 794.

99.

Separation by consent, with or without the understanding that one of the parties will apply for a divorce, is not desertion.

NOTE.-Crow vs. Crow, 23 Ala., p. 583; Gray vs. Gray, 15 Ala., p. 779; Vanleer vs. Vanleer, 1 Harris Pa., p. 211; Ward vs. Ward, 1 Swab. & T., p. 185; Fulton vs. Fulton, 36 Missis., p. 517; McKay vs. McKay, 6 Grant U. C. Ch., p. 380.

100. The separation and intent to desert are not always coincident. Temporary absence or separation, coincident. proper in itself, may be converted into desertion whenever the intent to desert is fixed during such absence or separation.

Consent to

separate

101.

NOTE.-The mere absence of the husband on business is not desertion.-Ex parte Aldrige, 1 Swab. & T., p. 88. Desertion cannot be inferred against either from the mere unaided fact of their not living together.Jones vs. Jones, 13 Ala., p. 145; Gaines vs. Gaines, 9 B. Monroe, p. 295; Butler vs. Butler, 1 Parsons, p. 329; Stokes vs. Stokes, 1 Mo., 320; Pidge vs. Pidge, 3 Met., p. 257; Van Voorhees vs. Van Voorhees, Wright, p. 636; McCoy vs. McCoy, 3 Ind., p. 555; Cook vs. Cook, 2 Beasley, p. 263. But protracted absence, with other circumstances, may establish the original intent.-Ahrenfeldt vs. Ahrenfeldt, 1 Hoffman, p. 47.

Consent to a separation is a revocable act,

revocable. and if one of the parties afterwards, in good faith,

seeks a reconciliation and restoration, but the other refuses it, such refusal is desertion.

NOTE.-Bish. on Mar. and Div., Sec. 786; Benkert

vs. Benkert, 32 Cal., p. 467.

how cured.

102. If one party deserts the other, and before the Desertion, expiration of the statutory period required to make the desertion complete, truly repents, returns, and offers, in good faith, to fulfill the marriage contract, and solicits condonation, the desertion is cured. If the other party refuses such offer and condonation, it condonais desertion by such party from the time of refusal.

NOTE.-Bish. on Mar. and Div., Sec. 786; Benkert vs. Benkert, 32 Cal., p. 467.

103. The husband may choose any reasonable place or mode of living, and if the wife does not conform thereto, it is desertion.

NOTE.-Hardenberg vs. Hardenberg, 14 Cal., p. 654.

the

104. If the place or mode of living selected by the husband is unreasonable and grossly unfit, and wife does not conform thereto, it is desertion on the part of the husband from the time her reasonable objections are made known to him.

Effect of

refusing

tion.

Wife must husband's

abide by

selection of home, or it is desertion on her part.

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neglect,

what.

105. Willful neglect is the neglect of the husband Willful to provide for his wife the common necessaries of life, he having the ability to do so; or it is the failure to do so by reason of idleness, profligacy, or dissipation.

NOTE.-Washburn vs. Washburn, 9 Cal., p. 475.

intempe

106. Habitual intemperance is that degree of in- Habitual temperance from the use of intoxicating drinks which rance, what disqualifies the person a great portion of the time from properly attending to business, or which would reasonably inflict a course of great mental anguish upon the innocent party.

NOTE.-Mahone vs. Mahone, 19 Cal., p. 626; Bish. on Mar. and Div., Sec. 813.

Habitual intemperance for

one year.

107. Willful desertion, willful neglect, or habitual intemperance must continue for one year before either is a ground for divorce.

ARTICLE III.

Divorces

denied, on showing what.

Connivance,what

CAUSES FOR DENYING DIVORCE.

SECTION 111. Divorces denied, on showing what.
112. Connivance, what.

111.

113. Corrupt consent, how manifested.

114. Collusion, what.

115. Condonation, what.

116. Requisites to condonation.

117. Condonation implies what.

118. Evidence of condonation.

119. Condonation, when operates to bar divorce.

120. Concealment of facts in certain cases makes condona

tion void.

121. Condonation, how revoked.

122. Recrimination, what.

123. Condonation in a recriminatory defense a bar to such

defense, when.

124. Divorces denied, when.

125. Lapse of time establishes certain presumptions.

126. Presumptions may be rebutted.

127. Limitation of time.

128. Divorces granted, when.

129. Proof of actual residence required. Presumptions do

not apply.

130. Divorce not to be granted by default, etc.

Divorces must be denied upon showing:

1. Connivance; or,

2. Collusion; or,

3. Condonation; or,

4. Recrimination; or,

5. Limitation and lapse of time.

112. Connivance is the corrupt consent of one party to the commission of the acts of the other, constituting the cause of divorce.

NOTE.-Forster vs. Forster, 1 Hag. Con., p. 144; Peirce vs. Peirce, 3 Pick., p. 299; Phillips vs. Phillips,

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