Page:Encyclopædia Britannica, Ninth Edition, v. 7.djvu/321

303 that complained of. lie must come into court with clean hands ; and if he has himself been guilty of adultery he cannot obtain a sentence against his wife for adultery. Recrimination ought strictly to be of an offence of the same nature as the one complained of ; the petitioner is said to have compensado in eodein delicto. But under the 31st Bection of the new Act above referred to, adultery, cruelty, unreasonable delay, desertion, and misconduct conducing to adultery are made discretionary bars to divorce, that is, if they are proved, the court is not bound to pronounce the sentence of dissolution which would otherwise follow on proof of the respondent s adultery. In a recent case, where the respondent had previously obtained a decree of judicial separation on the ground of desertion, the husband s petition for dissolution of marriage on the ground of the wife s adultery was rejected by the court. The matrimonial suits inherited by the Divorce Court from the old ecclesiastical courts are those for nullity of marriage, for restitution of conjugal rights, and for jactita tion of marriage. These suits must be decided according to the principles of the canon law as administered in the English ecclesiastical courts. A marriage will be declared null ab initio when the requisites of a legal marriage have not been complied with. The alleged defect must have existed at the time of the celebration of the marriage. The formal requisites are (1) that the marriage should be celebrated in pursuance of a special licence, ordinary licence, publication of banns, superintendent-registrar s licence or certificate, in the presence of a person in holy orders, or a registrar ; and (2) in a parish church or public chapel, or superintendent- registrar s office, or in some building registered for the solemnization of marriages, except when solemnized by special licence (see MARRIAGE.) These rules only apply to marriages in England, and a marriage is void only when the requisites are deficient, and known to both parties to be deficient, at the time of the ceremony. The two other requisites apply to all marriages, and if they are wanting the marriage is absolutely void : (1), The marriage must be between single persons, not being within the prohibited degrees of consanguinity and affinity, and who are (2) con senting and of a sound mind, and able to perform the duties of matrimony. The &quot; prohibited degrees &quot; are those set forth in the common prayer book, and extend to illegitimate as well as legitimate relations. The ecclesiastical courts had been in the habit of annulling such marriages previous to the 5 and 6 Will. IV. c. 54, and until so annulled, in the lifetime of the parties, they were regarded as voidable only, and not void. That enactment, however, while ordering that marriages already celebrated &quot; between persons within the prohibited degrees of affinity &quot; shall not be annulled for that cause only by the ecclesiastical courts, goes on to declare that all marriages which shall thereafter &quot; be celebrated between persons within the prohibited degrees of consanguinity and affinity shall he absolutely null and void to all intents and purposes whatever,&quot; As to the second requisite, fraud, force, or duress, showing the absence of consent, will make void the marriage. Insanity at the time of the marriage has the same effect. A marriage may also be annulled for bodily incapacity existing at the time of the marriage, and proved to be incurable. In a petition for restitution of conjugal rights, the marriage must be proved, and it must be shown that the respondent has withdrawn without reasonable cause from cohabitation with the other spouse. The court can only order husband and wife to live under the same roof. The petitioner will be refused a decree for restitution if he has himself committed any matrimonial offence which would be a ground for judicial separation. Jactitation of marriage is when &quot; one party boasts or gives out that he is married to the other, whereby a common 303 reputation of their marriage may ensue.&quot; Suits for jactita tion are not now common. The only remedy of the court is to decree perpetual silence against the jactitator. Scotch Law. Divorce for adultery lias been recognized in Scot land since the Reformation. It appears not to have been introduced by any statute, but to have been assumed by the post- Reformation judges as the common law. In another point the law of Scotland is in advance of the law of England. Divorce for adultery is com petent to either spouse. Malicious desertion is also a ground for divorce. This was enacted by a statute of 1573, c. 55. A previous action of adherence was formerly necessary, but is now abolished by the Conjugal Rights Act 1861 infra. Recrimination is no bar to an action for divorce in Scotland, but any ground which would satisfy a decree of judicial separation would have been a defence to the old action for adherence. Judicial separation is granted for cruelty and adultery; the party injured by the adultery of the other spouse may choose either judicial separation or divorce. The cruelty required to justify judicial separation must, as in England, be of a somewhat aggravated character. Divorce in Scotland had the effect of remitting the parties to the status of unmarried persons. The law, however, made one exception. A divorced person was not allowed to marry the paramour, at all events if the paramour was named in the decree, and for this reason the name of the paramour is some times omitted, so that the parties may be allowed to marry if they wish. By the Conjugal Rights (Scotland) Amendment Act 1861, pro visions similar to those of the English Divorce Acts were established. A deserted wife may apply to the Court of Session for an order to protect any property which she has or may acquire by her own industry, or may succeed to ; and such order of protection, when made and intimated, shall hare the effect of a decree of separation a mcnsa et thoro in regard to the property rights and obligations of the husband and of the wife, and in regard to the wife s capacity to sue and be sued. &quot;When a wife obtains a decree of separation a inensa et thoro, all property she may acquire shall be considered as property belonging to her, in reference to which the husband s jus mariti and right of administration are excluded ; she may dispose of it in all respects as if she were unmarried, and if she dies intestate it will pass to her heirs and representatives, as if her husband had been dead. A wife so separated shall be capable of entering into obligations, and of suing and being sued, as if she were not married, and the husband shall not be liable for her obligations, &c., except when separation aliment has been ordered to be paid to the wife, and remains unpaid, in which, case he shall be liable for her neces saries. In a husband s action for adultery, the alleged adulterer may be cited as co-defender, and the expenses of process taxed as between agent and client may be charged upon him if the adultery is proved. The co-defender may be examined as a witness, and he may be dismissed from the cause, if the court is satisfied that such a course is conducive to the justice of the case. The Lord Advocate may enter appearance in any action of nullity of marriage or divorce. In any consistorial action, the summons shall be served personally on the defender when he is not resident in Scotland, but if the court is satisfied that he cannot be found, edictal citation will be sufficient, provided that the pursuer shall also serve the summons on the children and the next of kin of the defender other than the children, when they are known and resident within the United Kingdom, and they, whether they are cited or so resident or not, may appear and state defences to the action. By sect. xi. it shall not be necessary prior to any action of divorce to institute against the defender any action of adherence, nor to charge the defender to adhere to the pursuer, nor to denounce the defender, nor to apply to the presbytery of the bounds or any other judicature to admonish the defender to adhere. Proofs in consistorial actions are in future to be taken before the Lord Ordinary. Consistorial actions are defined in the Act as including actions of declaration of marriage, of nullity of marriage, and of legitimacy and bastardy, actions of separation a mcnsa et thoro, of divorce, and of adherence and of putting to silence, and actions of aliment between husband and wife instituted in the court of session. United States. The matrimonial law of England, as at the time of the declaration of independence, forms part of the common law of the United States. But as no ecclesiastical courts have ever existed there, the law must be considered to have been inoperative. There is no national jurisdiction in divorce, and though it is competent to Congress to authorize divorces in the Territories, still it appears that this subject like others is usually left to the territorial legislature. In the different States, as in England, divorces were at first granted by the legislatures, whether directly or by grunting special authority to the tribunals to deal with particular cases. This practice has, it appears, fallen into general disrepute, and by the constitution of some States legislative divorces are expressly prohibited. Apart from such express prohibitions, it has been contended that legislative divorces are debarred by general clauses in the constitution of the United States, or in the constitution of particular States. Thus the con-