Читать книгу Marriage and Divorce Laws of the World - Hyacinthe Ringrose - Страница 6

1 Grandfather.

2 Grandmother’s Husband.

3 Husband’s Grandfather.

4-5 Father’s Brother, Mother’s Brother (uncle by blood).

6-7 Father’s Sister’s Husband, Mother’s Sister’s Husband, (Aunt’s Husband, i.e., uncle by affinity).

8-9 Husband’s Father’s Brother, Husband’s Mother’s Brother (husband’s uncle).

10 Father.

11 Stepfather.

12 Husband’s Father (father-in-law).

13 Son.

14 Husband’s Son (stepson).

15 Daughter’s Husband (son-in-law).

16 Brother.

17-18 Husband’s Brother, Sister’s Husband (brother-in-law).

19-20 Son’s Son, Daughter’s Son (grandson).

21 Son’s Daughter’s Husband (son’s son-in-law).

22 Daughter’s Daughter’s Husband (daughter’s son-in-law).

23 Husband’s Son’s Son (stepson’s son).

24 Husband’s Daughter’s Son (stepdaughter’s son).

25-26 Brother’s Son, Sister’s Son (nephew).

27-28 Brother’s Daughter’s Husband, Sister’s Daughter’s Husband (niece’s husband).

29-30 Husband’s Brother’s Son, Husband’s Sister’s Son (nephew by affinity).

Grounds Or Causes for Divorce.—A husband is entitled to a divorce if his wife has committed adultery, but a wife is not so entitled unless her husband has committed incestuous adultery, bigamy, rape, sodomy, bestiality, adultery coupled with cruelty, or adultery coupled with desertion without reasonable excuse for two years or more. Incestuous adultery is adultery with a woman within the prohibited degrees.

A wife will not be granted a decree of divorce on the ground of her husband’s adultery coupled with cruelty unless the cruelty relied on consists of bodily hurt or injury to health, or a reasonable danger or apprehension of one or the other of them. There must be at least two acts of cruelty on the part of the husband.

The communication of venereal disease when the husband knows of his condition is an act of cruelty.

Procedure.—The application for a divorce is made by a petition to the Probate, Divorce and Admiralty Division of the High Court of Justice.

The party seeking relief is called the petitioner, and the party against whom the petition is brought is called the respondent. The party with whom a husband alleges his wife has committed adultery is called the co-respondent. The person with whom a wife alleges her husband has committed adultery is not a party to the suit. However, a woman implicated in a divorce suit may, upon proper application, secure an order permitting her to attend the proceedings as an intervener.

Divorce proceedings in England are very expensive; the costs in an ordinary uncontested suit amount to from thirty to forty pounds sterling.

A petitioner or respondent who is not worth twenty-five pounds after payment of his or her debts, exclusive of wearing apparel, may sue or defend in forma pauperis. A person whose income exceeds one pound a week cannot, except in special cases, sue or defend in forma pauperis. A party desiring to sue or defend in forma pauperis must as a preliminary measure prepare a written statement of his or her case, setting forth the facts relied upon as a cause of action or defence, and obtain thereon an endorsed opinion of a barrister-at-law setting forth his professional opinion that the cause of action or defence as stated is good in law. The applicant must then make an affidavit, attaching the statement and the barrister’s opinion. This affidavit is then filed in the Divorce Registry of Somerset House, where two days later, if a proper case is made out, an order is issued granting the applicant leave to sue or defend in forma pauperis. No fees are charged in respect to this application nor upon the subsequent proceedings in court. No solicitor or barrister is assigned to the party proceeding in this form.

Jurisdiction.—The Court will only entertain jurisdiction when the husband is domiciled in England. If the husband is temporarily residing abroad an action by him or his wife for divorce must be instituted in England.

The English Courts do not recognize a change of domicile which is obtained simply to enable the parties to obtain a divorce in another country, the laws of which offer greater facilities.

If the domicile of the husband is in England, and either the husband or the wife obtains a decree of divorce in the United States of America or elsewhere, the English courts will treat such a divorce as a nullity. A person’s domicile is his or her permanent home. An Englishman who lives in America for twenty-five years is not domiciled there unless by all the facts his conduct shows that he has abandoned his English domicile.

Condonation.—A matrimonial offence which is a sufficient cause for divorce may be condoned or forgiven by the spouse aggrieved, and such condonation is a good defence to the action. But subsequent misconduct will revive the offence as if there had been no condonation.

Connivance.—It is a sufficient defence to an action for divorce for the respondent to show that the adultery complained of was committed by the connivance or active consent of the petitioner.

Collusion.—Collusion is the illegal agreement and co-operation between the petitioner and the respondent in a divorce action to obtain a judicial dissolution of the marriage.

Form of Divorce Decrees.—An English decree of divorce is in the first instance nisi, or provisional. If after six months it is unaffected by any intervention by the King’s Proctor, or any other person, it can be made absolute upon proper application.

King’s Proctor.—This is the proctor or solicitor representing the Crown in the Probate, Divorce and Admiralty Division of the High Court of Justice in matrimonial causes.

In his official capacity he can only intervene in a divorce suit on the ground of collusion.

Sir James Hannen, discussing the powers of this officer, said in a leading case: “If, then, the information given to the King’s Proctor before the decree nisi does not rise to a suspicion of collusion, but only brings to his knowledge matters material to the due decision of the case, he is not entitled to take any step, and the direction of the Attorney-General would probably be that he should watch the case to see if these material facts are brought to the notice of the court. If at the trial they should be, there will be no need for the King’s Proctor to do anything more, for he would not be entitled to have the same charges tried over again unless material facts were not brought to the notice of the court.

“If, however, those material facts are not so brought to the notice of the court by the parties, he will then be entitled as one of the public, but still acting under the direction of the Attorney-General, to show cause against the decree being made absolute.”

In special cases the court has power to make the decree absolute before the expiration of six months after the decree nisi.

Until the decree is made absolute neither party can lawfully contract another marriage; and in the event of the suit being contested the parties must further wait until the time for an appeal has passed.

Alimony, Temporary and Permanent.—During the pendency of the suit the husband is liable to provide his wife with alimony or maintenance. The amount granted is within the court’s discretion, but generally it is about twenty-five per centum of the husband’s income. Upon the granting of a decree in the wife’s favour the court has power to grant the wife permanent alimony, the amount of which depends on all the facts, such as the husband’s income, the wife’s means and the social status of the parties. If a wife secures an order for alimony against her husband, he being a man of property, the court may require him to give security for its payment or direct him to make a transfer of money to a trustee or trustees for the convenient payment to the wife. Permanent alimony is usually smaller than temporary alimony, or alimony pendente lite, but no rule as to the amount can be safely stated, it resting in the discretion of the Court.

If a husband has no considerable property he will be directed to pay the alimony awarded against him in monthly or weekly instalments.

Insanity.—Insanity is neither a cause nor a bar to divorce. If an insane wife commits adultery, or if an insane husband commits adultery coupled with the other offences which make out a cause of action against him, the innocent party is entitled to a decree of divorce. So an insane party may be a petitioner for divorce, but can only appear by his or her committee in lunacy.

Husband’s Name.—A divorced wife is entitled to continue to use her former husband’s surname.

Annulment of Marriage.—An action for the annulment of marriage has for its purpose the setting aside of the marriage contract on the theory that proper consent to the marriage has never been given by both the parties.

The following are the causes or grounds for such annulment:

1. A prior and existing marriage of one of the parties;

2. Impotency, or such physical malformation of one of the parties which prevents him or her from consummating the marriage by sexual intercourse;

3. Relationship within the prohibited degrees;

4. Marriage procured by fraud, violence or mistake;

5. Insanity of one of the parties at the time of the marriage;

6. Marriage performed without legal license, or without the required publication of banns.

Judicial Separation.—By the Matrimonial Causes Act a decree of judicial separation, which is equivalent in effect to a divorce a mensa et thoro under the old law, may be obtained either by the husband or wife on the ground of adultery, or cruelty, or desertion without legal cause for two years and upwards.

The defences which may be set up by the respondent vary according to the cause relied upon by the petitioner, but there is one absolute bar in suits for judicial separations brought on any ground, and that is that the petitioner has committed adultery since the date of the marriage.

Separation Orders.—Besides the ordinary suit to obtain a judicial separation which must be prosecuted in the High Court a wife can obtain speedy and inexpensive relief by making an application to a police magistrate, or a board of magistrates, for a separation order. This remedy is limited to married women whose husbands are domiciled in England or Wales.

Such separation orders are intended to furnish summary relief to the wives of workingmen, and the amount awarded for the wife’s support to be paid by her husband cannot exceed two pounds a week, no matter what the husband’s income may be.

The following are the causes for which, upon application, a magistrate or board of magistrates is authorized to grant a separation order:

1. Habitual drunkenness of the husband, which renders him at times dangerous to himself or others, or incapable of managing himself or his affairs;

2. When the husband has been convicted of an aggravated assault upon his wife, or has been convicted by an Assize or Quarter Sessions Court of an assault and has been sentenced to a fine of more than five pounds or to imprisonment for more than two months;

3. Desertion by the husband of his wife;

4. Persistent cruelty of the husband toward his wife;

5. Neglect to provide reasonable maintenance for wife or infant children.

By the Licensing Act of 1902 a husband is entitled to a separation order by a magistrate or board of magistrates if his wife is an habitual drunkard.

Restitution of Conjugal Rights.—Husbands and wives are entitled to each other’s society, and if, without sufficient reason, either of them neglects to perform his or her obligations the injured party may institute what is known as a suit for restitution of conjugal rights, in which the court will grant a decree directing the offending party to render conjugal rights to the other party. If the decree is not complied with, such non-compliance is equivalent to desertion, and a suit for judicial separation may be instituted immediately. If the husband is the offending party, and if he has been guilty of adultery, a suit for divorce may at once be instituted; or if he commits adultery subsequently to the date of the decree for restitution, proceedings for divorce may be taken. Furthermore, if the suit for restitution is brought by the wife, the husband may be directed to make such periodical payments for her benefit as the court may think just. If the suit for restitution is brought by the husband, and if the wife is entitled to any property, the court may order a settlement for the whole or part of it for the benefit of the husband and children of the marriage, or either or any of them, or may order the wife to pay a portion of her earnings to the husband for his own benefit, or to some other person for the benefit of the children of the marriage. A husband cannot compel his wife to live with him by force, and if he seizes and retains possession of her, she or her relatives can obtain a habeas corpus to compel him to release her, but persons who wrongfully induce a wife to leave her husband, or who detain her from his society by improper means, are liable to an action for damages by him. If a husband declines to live with his wife because he discovers that she has been unchaste before marriage she cannot obtain a decree for restitution of conjugal rights unless he knew of the fact before the marriage took place. If a husband has been guilty of cruelty he cannot obtain a decree for restitution.

Foreign Marriages.—The Foreign Marriage Act of 1892 (55 and 56 Vict. c. 23) forms a complete code upon the subject of the marriage of British subjects abroad.

Its chief requirement is that one at least of the parties to the marriage must be a British subject.

Notice of the proposed marriage must be given fourteen days before the ceremony, and it must be performed before one of the following officials, who is termed in the Act a “marriage officer”: the British ambassador, minister or chargé-d’affaires, accredited to the country where the marriage takes place; the British consul, governor, high commissioner, or official resident. The term consul in the Act includes a consul-general, a vice-consul, pro-consul, or consular agent.

If the woman is a British subject, and the man is a subject or citizen of another country, the marriage officer must be satisfied that the intended marriage would be recognized by the laws of the country where the man to be married belongs.

In 1896 there was passed the Marriage with Foreigners Act (6 Edw. 7, 3. 40), which is intended to protect British subjects who contract marriages with subjects or citizens of other countries, either at home or abroad, and to run the risk of having their marriages treated as invalid by the law of the country of the foreign contracting party. It provides for the granting of certificates by competent authority in the country to which the foreign party to the marriage owes allegiance, stating that there is no lawful impediment to the proposed marriage.

Conflict of Laws.—English courts do not recognize a decree of divorce granted by the courts of a foreign country as having any effect outside of the country where granted, unless at the time of the beginning of the action which resulted in the decree both parties were domiciled within the jurisdiction of the court which granted it.

This rule applies to divorce decrees obtained in Scotland because for all the purposes of private international law Scotland is a foreign country.

The English courts will, however, recognize as possessing extra-territorial validity a decree of divorce which is recognized as valid by the courts of the country where the parties were actually domiciled at the time of its being granted.

In the case of Gillig v. Gillig, decided in 1906, the English High Court recognized as valid in England a divorce granted in South Dakota, U. S. A., of parties domiciled in New York, because the decree in question was recognized as valid by the courts of the State of New York. It is the doctrine of English courts that an honest adherence to the principle that domicile alone gives jurisdiction in a divorce action will preclude the scandal which arises when a man and woman are held to be husband and wife in one country and strangers in another.