Separation (law)

“ Separation Deeds.—Although nothing in the development of the law of divorce has tended to give to married persons the right absolutely to dissolve their marriage by consent, and, on the contrary, any such agreement would be held to be strong evidence of collusion, the view of the Church expressed in the ecclesiastical law has been entirely departed from as regards agreements for separation. Such agreements were embodied in deeds, and usually contained mutual covenants not to sue in the ecclesiastical courts for restitution of conjugal rights. ”

“ 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. ”

“ 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? ”

“ 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. ”

“ 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." ”

“ 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 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. ”

“ Although the present proceeding necessarily presents questions of state law, resting as it does upon diversity jurisdiction, the case does not present any nonfederal issue suitable for separation and determination in the state courts. [15] The remaining matters of state law are for the decision of the federal courts. ”

“ In accordance with the French interpretation of the theory of the separation of powers, it is the general rule on the continent of Europe that the ordinary courts administer only private law between private citizens, and that questions affecting the rights and duties of public officials are withdrawn from their jurisdiction. ”

“ A suit for divorce or separation is begun, as everyone knows, by a petition to the presiding judge: the party seeking freedom or release from the conjugal tie briefly states his grievances, and requests the magistrate, according to law, to attempt a reconciliation, a useless proceeding in most cases, before the final break. In the provinces, the first step in the proceedings is generally heartily welcomed in the solicitors' offices. ”

“ 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. ”

“ 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. ”

“ If it be determined, that they are not laws of the same character, but are as distinct as bankrupt laws and laws which regulate the course of descents, a distinct line of separation must be drawn, and the power of each government marked with precision. ”

“ 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 concurrent agreement of all the members of this great republic to separate! A voluntary separation, with alimony on one side and on the other. Why, what would be the result? Where is the line to be drawn? What States are to secede? What is to remain American? What am I to be? An American no longer? Am I to become a sectional man, a local man, a separatist, with no country in common with the gentlemen who sit around me here, or who fill the other house of Congress? Heaven forbid! Where is the flag of the republic to remain? ”

“ Laws permitting, and even requiring, their separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power. ”

“ 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. ”

“ 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 your leaders could succeed in establishing a separation, what would be your situation? Are you united at home—are you free from the apprehension of civil discord, with all its fearful consequences? ”

“ Monotonous and stagnant indeed must ever be the state of a people who are permanently condemned to such separation from each other. If, moreover, the land of a new country is so carelessly surveyed that the boundaries of property are incorrectly or inadequately defined, the Government lays up a store of mischievous litigation for the people. ”

“ At one time, the great ambition of woman was to procure a legal separation--an ambition which seems to have developed into a fad, for at one period there were over three hundred applicants for legal separation, a state of affairs which so frightened Parliament that it passed rigid laws. ”

“ 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. ”

“ 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. ”

“ The one consideration which appears to keep them out of the workhouse, more than bolt or bar, is the stern rule which enjoins separation during their sojourn within the walls of the Union between husband and wife, parent and child. ”

“ 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. ”

“ 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. ”

“ Eden sighed heavily. “No it is not. Separate confinement, i.e., separation of prisoner from prisoner, is legal, but separation of a prisoner from the human race is as illegal as any other mode of homicide. ”

“ I am not a politician and have always been a strenuous friend of the Union. I am now in favor of a separation, unless you immediately retrace your steps and give the necessary guarantees by the passage of appropriate laws that you will faithfully abide by the compromises of the Constitution, by which alone the slaveholding States can with honor or safety remain in the Union. ”

“ I think it will be quite out of the power of any government to retain by force 337under its rule any considerable number of people, who, with or without, a grievance, are practically unanimous for a separate government. The Congress of Nations will, or at least ought to, require that any people seeking separation shall be nearly unanimous. ”

“ And even had the separation been legitimate, a division of the property could only be claimed in virtue of a special agreement—sanctioned by a competent court; and there was, moreover, if the action of the General Conference was available, a special agreement as to the property in question, in virtue of which the plaintiffs can have no claim upon it. ”

“ There would of course be always danger, that the rights of other nations might be infringed by their decisions, so as to afford occasions of reprisal and war. Though the true province of juries be to determine matters of fact, yet, in most cases, legal consequences are complicated with fact in such a manner, as to render a separation impracticable. ”

“ 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 246health 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?” ”

“ If I get you rightly, as each state is governed by its own independent laws, the status of married persons must be governed by the law of the state where they are; otherwise if every couple on some theory of exterritoriality carried the law of the state where they happened to have been joined together round with them we would have the spectacle of every state in the union interpreting the divorce laws of every other state—confusion worse confounded. ”

“ 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. ”