Legal separation

“ We have always had adultery and got along beautifully, while divorce is new and American and intolerable. Of course, one can and sometimes does advise a legal separation, but that comes hard to minds that face facts, since separation is only a license to—well, we all know what separation amounts to ”

“ By these articles, it is insisted, where the dissolution of the marriage has been decreed because of the fault of one of the parties, the separation of property does not follow as a legal right in favor of the party for whose wrong conduct the divorce has been decreed, and may only be allowed by a court at the request or option of the one in whose favor the decree was rendered. ”

“ The protection of the warrant is not absolute; in such cases as this it ought later to be reinforced by a legal separation. Social workers avail themselves of this resource far less than they should. It controverts the principles of no religious sect and gives all the protection of absolute divorce (including the payment of alimony) to the woman and children. ”

“ So, if any person, whose husband or wife shall have absented himself or herself for the space of five consecutive years without being known to such person to be living during that time, shall marry during the lifetime of such absent husband or wife, the marriage shall be void only from the time its nullity is pronounced by a court of competent authority. The law authorizing a legal separation, or a limited divorce, in New York, has been repealed, and the only causes arising after marriage for which a legal marriage can be annulled are adultery and imprisonment for life ”

“ Hereafter absolute divorce will be granted only for adultery, the guilty person not being allowed to remarry. Legal separation from bed and board may be obtained for (1) drunkenness, (2) cruelty, or (3) desertion. Only residents may bring suit for divorce; and unless the applicant has for three years been a bona fide resident, no decree will be granted for a cause occurring outside the District before such residence began. ”

“ A reasonable cause for desertion must be some wrongful conduct on the part of the other party, and must be of such a serious nature that it would prima facie entitle the party deserting to a divorce. If husband and wife mutually agree to separate, such separation will not constitute ground for divorce, unless the party applying for the divorce, in good faith expresses a desire to live with the other. ”

“ This spark, through our own innate perversity, for I contend that here as elsewhere, in sexual relations, the fault lies generally with the man, or through the malicious or ill-judged meddling of third parties, is fanned into flame, and then the work is done: [Pg 123] a separation, with or without the formality of a legal divorce, becomes but too often inevitable, or if not carrying matters to this extent, perhaps for the sake of the children, the parties still live together, united in semblance, but in reality living the most dreary of prison lives, each virtually changed to a foe. ”

“ The husband alone is entitled to administer the property of the community, and he may alien, sell or mortgage it without the concurrence of the wife.” But he cannot dispose by will of more than his share of the common property, nor can he part with it gratuitously inter vivos. The community is dissolved by death (natural or civil) , divorce, separation of body or separation of property. On separation of body or of property the wife is entitled to the full control of her movable property, but cannot alien her immovable property, without her husband’s consent or legal authority. ”

“ The arbitrary separation of citizens on the basis of race while they are on a public highway is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution. It cannot be justified upon any legal grounds.
If evils will result from the commingling of the two races upon public highways established for the benefit of all, they will be infinitely less than those that will surely come from state legislation regulating the enjoyment of civil rights upon the basis of race. ”

“ But it was urged by the learned counsel who argued this cause for the defendant, that husband and wife, although allowed to live separately under a decree of separation a mensa et thoro, made by a State court having competent jurisdiction, are still so far one person, while the married relation continues to exist, that they cannot become at the same time citizens of different States, within the meaning of the Federal Constitution, and therefore the court below had no jurisdiction. ”

“ But such marriages not being void ab initio, but voidable only by sentence of separation, they are esteemed valid to all civil purposes, unless such separation is actually made during the life of the parties. ”

“ Furthermore, this court has no power to grant divorces. It merely adjusts differences, punishes abandoning husbands, and advises separation when separation seems the only wise course, and determines the amount of money that the man must contribute towards the support of his wife, children or other relatives. ”

“ A sentence of judicial separation may be obtained either by the husband or the wife, on the ground of desertion without cause for two years or upwards. To constitute wilful desertion on the part of the husband, his absence must be against the will of his wife, and she must not have been a consenting party to it. ”

“ In other words, although the right to a separation of property arises from the reckless conduct of the husband, thus affording a means of guarding against the consequences of such conduct in the future, the right to ask a separation does not give rise to the inference that the husband, after the dissolution of the community, may be held to account for money expended by him during the community because of reckless or extravagant conduct. ”

“ But these domestic alienations are not confined to those who once moved in the higher orders of society—the monthly registers announce almost as many divorces as marriages, and the facility of separation has rendered the one little more than a licentious compact, which the other is considered as a means of dissolving. ”

“ A full divorce is permitted only on the scriptural ground; but a partial divorce "for life or for a limited time" may be decreed in favor of the aggrieved for (1) cruel treatment; (2) conduct rendering cohabitation unsafe or improper; (3) abandonment, accompanied by refusal to fulfil the matrimonial obligations sanctioned by the statute. If in any case a decree of separation [141] be denied, the court may provide for the separate maintenance of the wife and children by the husband or out of his property. ”

“ The other five causes sanctioned by the statute of 1838 are re-enacted without change. [419] A relaxation of the law takes place in 1849. One year's abandonment is declared sufficient to constitute a cause; but in such case the court is especially empowered, in its discretion, to grant a divorce, waiving all objections in regard to time of separation, if it deems a reconciliation "hopeless." ”

“ If a husband is away on his business, as, for example, the case of an officer ordered abroad, that is not desertion. For a woman to get a judicial separation, it is sufficient if she can prove one variety of matrimonial offence, but for a divorce she requires more than one. ”

“ If the law authorizes a wife to leave her husband on account of cruel treatment, and to get from him a competent support, it cannot withhold its sanction to the articles of separation concluded between these parties under the circumstances disclosed by the evidence in this case. ”

“ To this court were transferred all the powers of the ecclesiastical courts with regard to suits for divorce a mensa et thoro, to which the name was given of suits for “judicial separation,” nullity, restitution of conjugal rights, and jactitation of marriage, and in all such proceedings it was expressly enacted (sec. 22) that the court should act on principles and rules as nearly as possible conformable to the principles and rules of the ecclesiastical courts. Judicial separation could be obtained by either husband or wife for adultery, or cruelty, or desertion continued for two or more years. ”

“ It is contended that deeds of separation between husband and wife cannot be upheld, because it is against public policy to allow parties sustaining that relation to vary their duties and responsibilities by entering into an agreement which contemplates a partial dissolution of the marriage contract. ”

“ An offer to return made by the deserted spouse in good faith at any time before the separation has run for the statutory period will bar a divorce, but not if the offer is made afterward. Again, a husband who drives his wife away from him by his misconduct deserts her as clearly as if he had left her. To cease living together for the time fixed by statute is not desertion unless this was done intentionally. For example, separation on account of business, sickness, etc., is not desertion. Not only must there be an intention to leave the other party, this must be without consent. ”

“ What is there to prevent two persons from entering into a civil marriage with the understanding that they should live together for a certain time, be as other married persons before the law, sharing its protection and enjoying its privileges, and then separate by complying with the conditions on which the law allows a separation? ”

“ When the courts of the country became united under the Judicature Acts, it became practicable to set up in the divorce division a separation deed in answer to a suit for restitution of conjugal rights without the necessity of recourse to any other tribunal. ”

“ And if any one should knowingly commit such an offence, his heirs, should he have no legitimate children, shall obtain his property; and he himself shall be subjected to penance, and shall undergo the punishment of perpetual exile.
[113]
TITLE VI.—CONCERNING DIVORCE, AND THE SEPARATION OF PERSONS WHO HAVE BEEN BETROTHED. I. Where a Woman, justly or unjustly, is Separated from her Husband.
No one can legally marry a freewoman who has been repudiated by her husband, unless he knows that they have been divorced, either by written evidence, or in the presence of witnesses. ”

“ Answer.—All States, except California and Indiana, give the wife a dower right in her husband’s property. In case of voluntary separation, she may agree to waive a part, or all, of her right; or the husband may concede more than her dower right, and in case the agreement is reduced to writing and properly acknowledged, it is binding upon both parties, the separation being in other respects in conformity with law. In case of a divorce for the wife’s fault, she loses her dower right. ”

“ Whenever a legislative body takes an action in cases of divorces, it is not improperly regarded as an infringement upon the legislative provinces of the courts. For these reasons I trust your honorable body will firmly refuse to interfere with the rights of husband and wife. Applicants, seeking separation, should be directed to the courts of our territory where they can receive all the relief and remedy for their grievances which the laws of our country afford. ”

“ If we may terminate it for adultery or cruelty, or any cause whatever, if we may suspend the intimacy of husband and wife by separation orders and the like, if we recognise their separate property and interfere between them and their children to ensure the health and education of the latter, then we open at once the whole question of a terminating agreement. Marriage ceases to be an unlimited union and becomes a definite contract. We raise the whole question of "What are the limits in marriage, and how and when may a marriage terminate?" ”

“ The 'fault' here meant and contemplated is a voluntary consenting to the separation, or such failure of duty or misconduct on her part as 'materially contributes to a disruption of the marital relation.' If she leave the husband voluntarily, or by consent, or if her misconduct has materially induced the course of action on the part of the husband upon which she relies as justifying the separation, it is not without her fault within the meaning of the law. No encouragement can be given to the living apart of husband and wife. ”

“ If part of a defined territory, having functions or duties political, judicial, municipal, or other, be separated from it, either by annexion to another, or by being converted into a new political, judicial, municipal, or other entity, then the remaining part of the territory, or the former public body, retains all its property, powers, rights, and privileges, and remains subject to all its obligations and duties, unless some express provisions to the contrary be made by the act authorizing the separation. ”

“ For this, said the court, 'he is entitled to just damages, to be recompensed for his expenses, to be paid for the suffering to body and mind from confinement in a common cell in the State prison, for the disgrace, for the separation from his family at a time when it was very important that he should not be separated from them ”

“ I do not deny that in many situations the distinction may be important nor that legislatures and courts may be compelled from time to time to resurvey the changing line of separation. But here, I am convinced, the distinction is irrelevant to a just disposition of the case before us. ”

“ If this were done, all occasion for any such crime would be avoided, and the wife would be protected, and society protected. But, must a wife, simply because her husband is a brute, seek a divorce, and thus lose home and husband, and, moreover, deprive her children of their home and their father's support? Should the brute not rather be flogged and made to bear the punishment which is his due, instead of punishing his wife and children by a separation? These questions, which I have heard asked frequently, I shall endeavor to answer. A separation is a hard remedy. ”