Page:Encyclopædia Britannica, Ninth Edition, v. 7.djvu/320

302 302 DIVORCE commencement of the desertion may be protected from her husband and his creditors, and belong to herself as if she were an unmarried woman. In all cases except dissolution of marriage, the divorce court shall act on &quot; principles and rules which in the opinion of the said court shall be as nearly as may be conformable to the principles and rules on which the ecclesiastical courts have heretofore acted,&quot; subject of course to the rules and orders under the Act. AVhere a decree of separation has been obtained, in the absence of the husband or wife, as the case may be, it may be reversed on proper cause shown. In the case of judicial separation, the wife shall be treated in respect of any property she may acquire as if she were an unmarried woman ; on her death it will descend as it would have done if her husband were dead ; and should she again cohabit with her husband, any property she may be entitled to shall be held to her separate use, subject to any agreement she may have made with her husband when separated. So also a judicially separated wife should be treated as an unmarried woman for pur poses of contract and in civil proceedings generally. The most important section of the Act is that under which a marriage may be dissolved. &quot;It shall be lawful for any husband to present a petition to the said court praying that his marriage may be dis solved on the ground that his wife has since the celebration thereof been guilty of adultery ; and it shall be lawful for any wife to pre sent a petition to the said court, praying that her marriage may be dissolved, on the ground that since the celebration thereof her husband has been guilty of incestuous adultery, or of bigamy with adultery, or of rape, or of sodomy, or bestiality, or of adultery coupled with such cruelty as, without adultery, have entitled her to a divorce a meiisa et thoro, or of adultery coupled with desertion without reasonable excuse for two years and up wards.&quot; Incestuous adultery includes adultery committed with a woman within the prohibited degrees of consanguinity and affinity. On a husband s petition for divorce the alleged adulterer must be made a co-respondent, unless the court permits otherwise, and one of the parties may insist on trial byjury. And the court is to take special care to satisfy itself, not only as to the fact alleged, but as to the existence of anything like connivance or condonation on the part of the petitioner ; and it shall inquire at the same time into any counter charge made against the petitioner. When the court is not satisfied as to the facts, or finds connivance or condonation or collusion, the petition must be dismissed. If the court is satisfied on these points, a decree dissolving the marriage may be pronounced; but the court shall not be bound to produce such decree, if it finds that the petitioner has been guilty of adultery, or unreasonable delay in prosecuting the suit, or of cruelty, or desertion, or such neglect and misconduct as has 1 conduced to the adultery. The coiirt may decree the payment of alimony by the husband to the wife. The husband may in his petition claim damages against the co-respondent, and such claim shall be tried according to the same or like rules and regulations as actions for criminal conversation at common law, and the damages shall in all cases be ascertained by a jury ; but the court has power to direct the application of the damages, in whole or part, to the benefit of the children of the marriage, or the maintenance of the wife. And the co-respondent, if the case is established against him, may be ordered to pay the whole or any part of the costs. In proceedings for judicial separa tion, or nullity or dissolution of marriage, the court may make interim or final orders as to the custody and maintenance of the children. Questions of fact may be tried before the court itself or a jury, or issues of fact may be directed by the common law court. Every petitioner in a case of judicial separation, nullity, dissolution, or jactitation of marriage, must file an affidavit verifying his petition, and stating that there has been no collusion. In any case of divorce or judicial separation for wife s adultery, the court may order the settlement of any property to which the wife may be entitled, for the benefit of the innocent party or the children of the marriage. Appeals may be made from the judge ordinary, within three months, to the full court, and from that court to the House of Lords. By the 57th section, after a dissolution of marriage, &quot;it shall be lawful for the respective parties thereto to marry again, as if the prior marriage had been dissolved by death.&quot; Here follows a singular compromise, marking the conflict of opinions through which the Act had to pass. No clergyman of the United Church of England and Ireland shall be compelled to solemnize the marriage of any person whose former marriage has been dissolved on the ground of his or her adultery, or shall be liable to any penalty for refusing to do so. But any minister of a church or chapel so refus ing to solemnize the marriage of persons who would otherwise have been entitled to have the service performed in such church or chapel shall permit any other clergyman of the same diocese to perform such marriage in such church or chapel. The common law action for criminal conversation is abolished. Acts amending the Divorce Act were passed in 1858, 1859, 1860, 1864, 1866, 1868, and 1873. The Amendment Act of 1859, by a most unhappily worded section, gives power to the court, after a decree of nullity or dissolution, to revise the marriage settlements, and apply tlie property to the benefit of the children of the marriage or their respective parents. 5 It has been held that the court has no power to alter settlements unless there are children of the marriage alive at the date of the order. This Act also makes husband and wife competent and compellable to give evidence touching cruelty or desertion in a wife s petition for dissolution of marriage. The Act of 1SCO contains the following important clause ( 7). &quot;Every decree for a divorce shall in the first instance be a decree, nisi, not to be made absolute till after the expiration of such time not less than three montlta from the pronouncing thereof, as the court shall by general and special order from time to time direct and during that period any person shall be at liberty to show cause why the said decree should not be made absolute, by reason of the same having been obtained by collusion, or by reason of material facts not having been brought before the court ; and on cause beinc so shown, the court shall deal with the case by making the decree absolute, or by revising the decree nisi, or by requiring further inquiry or otherwise as justice may require ; and at any time during the progress of the cause, or before the decree is made absolute, any person may give information to her Majesty s proctor of any matter material to the due decision of the case, who may thereupon take such steps as the attorney -general may deem necessary or expedient ; and if from any such information or otherwise the said proctor shall suspect that any parties to the suit are, or have been, acting in collusion for the purpose of obtaining a divorce contrary to the justice of the case, he may, xindcr the direction of the attorney general, and by leave of the court, intervene in the suit, alleging such case of collusion, and retain counsel and subpoena witnesses to prove it.&quot; This clause is a most important addition to the securities against collusive suits provided by the earlier Acts. The period of three months has been extended to six by the Act of 1866. These sections have been extended by the Act of 1S73 to cases of nullity of marriage. The other provisions of the various amending Acts do not call for notice here. One or two points in the above summary may be further explained. The greater favour shown to husbands petitions for divorce than to wives follows with tolerable closeness the principles on which the House of Lords acted in passing private bills. The reason why the adultery of the husband is considered a less serious offence than the adultery of the wife will be obvious to every one. As a matter of fact, wives bills for divorce before Parliament were comparatively few, and some circumstance of aggrava tion was required. The first divorce granted to a wife by Parliament was in Addison s case in 1801, and the decision was mainly brought about by the masterly speech of Lord Thurlow. It may be added that Parlia mentary bills for divorce were not common until the 18th century. After the accession of the house of Hanover they became frequent. The right to a divorce or separation on any of the grounds mentioned may be avoided by conduct on the part of the petitioner amounting to what is called condonation, or forgiveness, e.g., if after the offence complained of the parties resume cohabitation. But the offence condoned may be revived, that is, the original right to sue thereon may be restored by a repetition of the offence. Thus a new act of adultery will revive a condoned adultery. So with an act of cruelty. It was also held in the ecclesiasti cal courts, and appears to be the law, that cruelty would revive adultery, and vice versa. The question then arose whether an act of cruelty could revive an old condoned act of adultery, or vice versa, so that the two might be pleaded together by the wife in support of her petition for dissolu tion of marriage. The remedy may also be barred by the connivance of the petitioner, i.e., his consent, express or implied, to the adultery of the spouse ; and also by collusion, i.e., a conspiracy between the parties, or between one of them and a third party, to obtain a sentence of divorce or separation. The mere fact that both parties desire the same end is not of itself collusion. But where they combine to bring about the offence, or to produce evidence from which the offence may be inferred, or to deceive the court by the suppression of material facts or otherwise, they are guilty of collusion. Recrimination under the old ecclesiastical law is where the respondent retorts by imputing to the petitioner conduct similar to