Divorces not to be granted by default, etc. the wife followed him, and arrived here and commenced her suit before six months had elapsed after her arrival, it was held that the domicile of the husband was the domicile of the wife, and that in contemplation of law the wife must be considered as having been a resident of this State continuously from the time her husband arrived here. In Kashaw vs. Kashaw the decision was rested upon the general rule that the wife's domicile follows her husband's. The attention of the Court was not directed to the fact that the law recognizes a wife as having a separate existence, and separate interests, and separate rights in those cases where the express object is to show that the relation itself ought to be dissolved.-Harteau vs. Harteau, 14 Pick., p. 181; The Republic vs. Skidmore, 2 Texas, p. 261. "The doctrine that, for the purpose of divorce," says Mr. Bishop, "the wife may have a domicile separate from her husband, is well established in the American tribunals, although some of the authorities would seem to make the distinction (it is submitted without proper foundation) that a wife cannot lose her domicile by the husband's change of residence after the offense is committed, yet cannot, on the other hand, acquire a new one."-2 Bishop on Marriage and Divorce, Sec. 128; Frary vs. Frary, 10 N. H., p. 61; Harding vs. Alden, 9 Greenl., p. 140; Sawtell vs. Sawtell, 17 Conn., p. 284; Fickle vs. Fickle, 5 Serg., p. 203; Richardson vs. Richardson, 2 Mass., p. 153; Fishli vs. Fishli, 2 Litt., p. 337; Tolen vs. Tolen, 2 Blackf., p. 407; Hare vs. Hare, 10 Texas, p. 355; Hinds vs. Hinds, 1 Iowa, p. 36; Hanberry vs. Hanberry, 29 Ala., p. 719; Yates vs. Yates, 2 Beasley, p. 280. And in Moffatt vs. Moffatt, 5 Cal., p. 280, the Supreme Court of this State recognize the principles embodied in Section 129, by holding that the desertion of the husband entitles the wife to her own domicile. 130. No divorce must be granted upon the default of the defendant, or upon the statement, admission, or uncorroborated testimony of the parties, or upon any statement or finding of fact made by a referee, but the Court must require proof of the facts alleged, which proof, if taken before a referee, must be upon written questions and answers. NOTE.-Confessions may be received in evidence, but a decree cannot be granted upon them alone.-Baker vs. Baker, 13 Cal., p. 87. If a referee in an action for a divorce finds the facts, the Court must disregard the ARTICLE IV. GENERAL PROVISIONS. SECTION 136. Relief may be adjudged in some cases, where separation is denied. 137. Expense of action. 138. Orders respecting custody of children. 139. Support of wife and children on divorce or separation 140. Security for maintenance and alimony. 141. Court shall resort to what, in executing certain sections. hold allowance. 143. Community and separate property may be subjected to 144. Legitimacy of issue. 145. Same. 146. Disposition of community property on divorce. 147. How disposed of when divorce rendered on adultery as a cause. 148. Such an action subject to revision on appeal. be 136. Though judgment of divorce is denied, the Relief may Court may, in an action for divorce, provide for the adjudged maintenance of the wife and her children, or any of cases. them, by the husband. NOTE.-P- vs. P—, 24 How. Pr., p. 197. separation is denied. of action. 137. While an action for divorce is pending the Expense 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. NOTE.-North vs. North, 1 Barb. Ch., p. 241. The Court may direct the husband to pay a monthly sum as alimony, the allowance to be based on his earrings, or ability to earn money.-Eidenmuller vs. Eidenmuller, 37 Cal., p. 364. Orders respecting children. 138. In an action for divorce the Court may, be custody of fore 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. Support of wife and children on divorce or separation Security for mainte alimony. 139. 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. NOTE. It has been questioned whether alimony can be granted to extend beyond the life of the husband. In Burr vs. Burr, 10 Paige, p. 20, it was held that it may. 140. The Court may require the husband to give nance and reasonable security for providing maintenance or making any payments required under the provisions of this Chapter, and may enforce the same by the appointment of a receiver, or by any other remedy applicable to the Court to what, in sections. If wife has sufficient for her support, withhold allowance. case. NOTE. In a suit for a divorce the Court has the power to order the husband to pay money to the wife for her support during the litigation, and for counsel fees and other legal expenses; and such order may be enforced by imprisonment for contempt in case of a refusal to pay.-Ex parte Perkins, 18 Cal., p. 60. 141. In executing the five preceding sections the Court must resort: 1. To the community property; then, 2. To the separate property of the husband. 142. When the wife has either a separate estate, or there is community property sufficient to give her Court may alimony or a proper support, the Court, in its discretion,, may withhold any allowance to her out of the separate property of the husband. nity and property 143. The community property and the separate Commuproperty may be subjected to the support and educa- separate tion of the children in such proportions as the Court subjected deems just. to support and educate children. of issue. 144. When a divorce is granted for the adultery Legitimacy of the husband, the legitimacy of children of the marriage begotten of the wife before the commencement of the action is not affected. 145. When a divorce is granted for the adultery Same. of the wife, the legitimacy of children begotten of her before the commission of the adultery is not affected; but the legitimacy of other children of the wife may be determined by the Court, upon the evidence in the case. of com property 146. In case of the dissolution of the marriage by Disposition decree of any Court of competent jurisdiction, the munity community property must be equally divided between on divorce. the parties; and the Court granting the decree must make such order for the division of the community property, or the sale and equal distribution of the proceeds thereof, as the nature of the case may require. NOTE. A partition of the common property is one of the direct results of a decree for divorce, and is part and parcel of the decree to be rendered, and one of the proper subjects of the action. Kashaw vs. Kashaw, 3 Cal., p. 312; Gimmy vs. Gimmy, 22 Cal., p. 633. If the decree did not direct a division of the community property, it does not conclude either parties in respect to their claims to such property (Godey vs. Godey, 39 Cal., p. 157), and another Court than the one rendering the decree, if otherwise competent, may determine disposition of the property.-Id. If the decree directs an equal division of the property, the former husband and wife become, from the time the decree is rendered, tenants in common of the real property.-McLeran vs. Benton, 31 Cal., p. 29. 147. When the decree of divorce is rendered on the ground of adultery or extreme cruelty, the party How disposed of when as a cause. Such an action subject to revision on appeal. in fault is only entitled to such portion of the community property as the Court granting the decree may, in its discretion, from the facts of the case, deem just. NOTE.-If the divorce is granted because of adultery, the Court may award all the common property to the innocent party.-Miller vs. Miller, 33 Cal., p. 353. But a decree of divorce simply for the cause of adultery does not deprive the guilty party of his interest in the community property.-Godey vs. Godey, 39 Cal., p. 157. 148. The order for the disposition of the community property, under the preceding section, is subject to revision on appeal in all respects, including the exercise of discretion by the Court below. NOTE.-Where a divorce is granted on the ground of extreme cruelty, the appellate Court will not set aside the judgment of the Court below, in dividing the community property, except there appears an abuse of discretion.-Eidenmuller vs. Eidenmuller, 37 Cal., p. 364. CHAPTER III. HUSBAND AND WIFE. SECTION 155. Mutual obligations of husband and wife. 161. May be joint tenants, etc. 162. Separate property of the wife. 163. Separate property of the husband. 164. Community property. 165. Inventory of separate property of wife. 166. Filing inventory notice of wife's title. 167. Wife not competent to contract for payment of money. 168. Earnings of wife not liable for debts of husband. 169. Earnings of wife, when living separate, separate prop erty. 170. Liability for debts of wife contracted before marriage. 171. Wife's property not liable for debts of the husband, but liable for her own debts. |