Abraham Clark Freeman John Proffatt.

The American decisions: cases of general value and authority ..., Volume 65 online

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without any legal proceedings. Divorces may be decreed for the following
causes, and no other: 5. Adultery; 6. Impotency at time of marriage; 7.
A.bandonment for two years; 8. Cruel and inhuman treatment of either party
by the other; 9. Habitual drunkenness of either; 10. Husband's failure to
make reasonable provision for his family for two years; 11. Conviction, after
marriage^ in any county, of an inftkmous crime. In cases of adultery, the di-
vorce is refused if the offense has been committed with the connivance of the
complainant, or if there has been voluntary cohabitation after knowledge ol
the fact, or if complainant be proved guilty of a similar crime: 2 Davis's R. &
Ind., 1876, pp. 324, 326, 327» 328, annotated.



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Dea 1866.] Hamaker v. HiWAinni 711

Iowa. — 1. Where marriage between the parties it toid, ae where it it pro-
hibited by law; 2. Impotenojat time of marriage; 8. Where either party had
a hosband or wife living at the time of the marriage, provided inch party hat
not oohabited with the other after the death of the former hnaband or wile;
in snob caae it it valid; 4. Inaanity or idiocy at time of marriage— for the
foregoing caoaet marriages may be annulled; 5. Adultery; 6. Toilful deser-
tion for two years without reasonable canse; 7. Conviction of felony after
marriage; 8. Habitual drunkenness; 9. Inhuman treatment, endangering the
other's life; 10. Pregnancy of wife by another than her husband, unless he
had illegitimate offspring then living, and unknown to wife at time of mar-
riage. Defendant may obtain divorce for like causes above stated by filing a
crosB-petitton. No divorce will be granted on testimony of plaintiff akme;
Miller's Code Iowa, 1880^ sees. 2211, 2223-2225, 2231, annotated.

Idaho. — 1. Consanguinity; 2. Former husband or wife living— such ipar-
riages, if solemnised within the territory, are void without decree of divoroa
or legal process; 3. Incapacity of assent for want of age or understanding]
4. Proof of fraud*-in such oases, if there shall have been no subsequent
voluntary cohabitation, the marriage shall be void from sentence of nullity;
but in no case shall a marriage be adjudged a nullity on the ground that out
of the parties was under age of legal consent, if free cohabitation as husband
and wife followed after the parties attained such age; nor shall the marriage
of an insane person be adjudged void after his restoration to reason, if mat-
rimonial cohabitation freely followed after such insane person was rettored to
sound mind; 5. Lnpotency at marriage, continuing to time of divorce; 6.
Adultery subsequent to marriage and remaining unforgiven; 7. Willful de-
sertion for two years; 8. Conviction of felony or infamous crimes; 0. Habit-
ual gross drunkenness, contracted since marriage, and incapacitating party
from contributing his or her share towards supporting family; 10. Extreme
cruelty; 11. N^lectof husband for two years to provide common neoewa
ries of life, where it is not the result of poverty and could be avoided by
ordinary industry: Laws Idaho, 1864, pp. 615, 616.

JTojMcu. — 1. Bigamy; 2. Abandonment for one year; 3. Adultery; 4. Im-
potency; 5. Pregnancy by another man at time of marriage; 6. Extreme
cruelty; 7. Fraudulent contract; 8. Habitual drunkenness; 0. Gross neglect
of duty; 10. Conviction of felony, and imprisonment therefor subsequent to
the marriage. But the court may, in its discretion, refuse to grant a divorce
where the parties appear to be in equal wrong; and recrimination may be
shown: Com. Laws Kan., 1879, sees. 4178, 4181, 4182, pp. 690, 691, anno-
tated.

Kenihtcky. — ^A man shall not marry his^ mother, grandmother, sister,
daughter, or granddaughter; nor the widow or divorced wife of his father,
grandfather, son, or grandson; nor the daughter, granddaughter, mother, or
grandmother of his wife; nor the daughter, or granddaughter of his brother
or sister; nor the sister of his father or mother. A woman shall not marry
her father, grandfather, brother, son, or grandson; nor the widower or di-
voroed husband of her mother, grandmother, daughter, or grandaughter; nor
the son, grandson, father, or grandfather of her husband; nor the son or
grandson of her brother or sister; nor the brother of her father or mother.
If relationship is founded on marriage, the prohibition shall continue, not-
withstanding the diMolution of the marriage by death or divorce, unless the
divorce is for a canse that rendered the marriage originally illegal or void.
This section indodet illegitiniate children and relatives. Marriages prohib-
ited by this teotion are incettuout and void. The following marriaget ara



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712 Hamakwr u Hamaker, [Illinois;

•bo proliibited aad declared yoid: I. With an idiot or lumtio; 2. Between
% white peraon and negro or mulatto; 3. With person having husband oi
wife living and undivoroed; 4. When not solemnised or contracted in the
presence of an authorized person or society; 5. When male is under fourteen,
and female under twelve, at time of marriage. Both husband and wife may
have a divorce for the following causes: I. Such impotenoy or malformation
as prevents sexual intercourse; 2. Living apart without any cohabitation for
five consecutive years next before the application. And the party not in
fault, for the following causes: 3. Abandonment for one year; 4^ living in
adultery with another man or woman; 5. Condemnation for felony, here or
elsewhere; 6. Concealment from the other party of any loathsome disease ex*
istiog at the time of marriage, or contracting such afterwards; 7. Force,
duress, or fraud in obtaining the marriage; 8. Union with any religious
society whose creed and rules require a renunciation of the marriage cove-
nant, or forbid the husband and wife from cohabiting. Also to the wife
when not in like fault, for the following causes: 9. Confirmed habits of
drunkenness of husband for one year, accompanied with a wasting of his es-
tate, life, health, or labor, and without any suitable provision for the main*
tenance of his wife and children; 10. Habitually behaving towards her l^
the husband, for not less than six months, in such cruel and inhuman man-
ner as to indicate a settled aversion to her, or to destroy permanently her
peace and happiness; 11. Such cruel beating or injury, or attempts at injury,
by the husband, as indicate an outrageous and ungovernable temper in liim,
resulting in probable danger to her, or great bodily injury, should she remain
with him. Also to the husband for the following causes: 12. Pregnancy of
wife at marriage by another man without the husband's knowledge; 13. Adul-
tery committed by the wife, or such lewd, lascivious behavior on her part as
proves her to be unchaste, without actual proof of a specific act of adultery;
14. Lunacy, and unsound mind, of confirmed and incurable character, of not
less than three years* continuance, and which is the result of intemperance,
or of an hereditary taint of insanity, concealed from the other party at the
time of boaniage, seems also to be a ground of divorce to both husband and
wife, where the judge concurs in verdict of jury before divorce; 15. Divorce
from bed and board may also be granted for any of the causes which allow a
divorce, or for such other cause as the court in its discretion may deem snflS*
dent. There shall not be granted to any person more than one divoroe, ex-
cept for the causes for which a divorce may be granted to both husband and
wife, and to the party not in fault against the other for living in adultery.
Petition cannot be confessed, and admissions of defendant alone are insuffi-
cient proof: Myers*s Sup. to R. S. Ey., p. 711; Qen. Stats. Ey., 1873, pp.
614, 515, 523-525; 2 Stanton's BL & Ey., pp. 17» 18, annotated.

Lauiaiana. — 1. Adultery; 2. Habitual intemperance, excesses, cruel treat-
ment, or outrageous onduct, rendering life insupportable; 3. Condenmatioo
to an ignominious punishment, or where the party being charged with an in-
famous offense flies from justice; 4. Desertion for five years, where the absent
party has been summoned to return by order of a competent court, and re-
fuses to do so. Except in the third case, and where the party in convicted of
adultery, a decree from bed and board must first be obtained. One year later
a decree for total divorce may be applied for, if there has been no reconcilia-
tion. In the excepted cases, judgment of divorce may be granted in the same
decree which pronounced the separation from bed and board. It seems, too,
that a foreign cause of divorce, sufficient in this state to support a decree
Cram bed and board, will enable the wife to obtain such divorce, where the •



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Dec. 1856.] Hamakicr v. Hamakkb, 718

marriaflse was oontraoted in tha state, and the wifo w«iit ont of H with hoi
husband, batretorned alone: Yooriiies's B. S. La., 1876, sees, 1190, 1192,
1198.

Maine, — ^No man shall marry his mother, grandmother, daughter, grand-
daughter, step-mother, grandfather's wife, son's wife, grandson's wife, wife's
mother, wife's grandmother, wife's daoghter, wife's granddaughter, sister,
brother's daughter, sister's daughter, father's sister, or mother's sister; and
DO woman shall marry her fathec, grandfather, son, grandson, step-father,
grandmother's husband, daughter's husband, granddaughter's husband, hus-
band's father, husband's grandfather, husband's son, husband's grandson,
brother, brother's son, sister's son, father's brother, or mother's brother.
And no insane person or idiot is capable of contracting marriage. All such
marriages, as well as those prohibited by law, and those contracted while either
party has a living nndivorced wife or husband, are, if solemnised within the
state, absolutely void; and the sentence for life of either party, and confine-
ment under it, dissolves the bonds of matrimony without legal process in
either case. Divorces are obtained for: 1. Adultery; 2. Impotence; 8. Ex-
treme cruelty; 4^ Utter desertion for three consecutive years next prior to
filing of libel; 5. Gross and confirmed habits of intoxication; 6. Cruel and
abusive treatment; 7. Where the husband, having sufficient ability, cruelly
neglects to provide for his wife; provided, that the parties were married in
this state, or cohabited here after marriage, or if the libelant resided here
when the cause of divorce accrued, or had resided here in good faith for one
year prior to the commencement of proceedings. But when both parties have
been guilty of adultery, or th^re is collusion between them to procure a
divorce, it shall not be granted. If the parties leave the state to obtain a
divorce elsewhere for causes not legal in Maine, such divorce will there be
void. The intermarriage of a white person with a negro, mulatto, or an In-
dian, and the entry of one under age of legal consent into marriage, seems to
be impliedly prohibited: R. S. Me., 1883, pp. 515, 520-523, annotated.

Maryland, — ^Any marriage within the degrees of kindred or affinity ex-
pressed in the Maine table will render it void; and divorcee will be decreed
for: 1. Impotency at marriage; 2. Consanguinity or affinity; 3. Adultery;
4. Abandonment for three years, deliberate and finsl, with no reasonable ex-
pectation of reconciliation; 5. Illicit, carnal interoourse by wife before
marriage with another man than her husband, the same being unknown to
her husband at the time of marriage. Divorces from bed and board are de-
creed for: 6. Cruel treatment; 7. Excessively vicious conduct; 8. Abandon-
ment and desertion; 9. And for all the above causes for which a total divorce
would be grsnted. No divorce will be granted for cause occurring out of
state, unless applicant has resided for two years last past before suit in the
state. A total divorce is not prevented by a prior partial divorce; and ad-
missions or consent vnll not authorize a decree: Bev. Code Md., 1878, pp.
480, 481, annotated.

jyToMocAtCMfto.— The prohibitions are the same as in Maine. Every marriage
solemnized within this commonwealth, which is prohibited on account of con-
sanguinity or affinity, or bigamy, insanity, or idiocy, is void without legal
process. So is a marriage under age of consent, if the parties separate during
such nonage, and do not afterwards cohabit: Sec. 1. A divorce from the
bonds of matrimony may be decreed for adultery, impotency, extreme cruelty,
utter desertion continued for three ccmseoutive years next prior to the filing of
iMie libel, gross andoonfirmed habits of intoxication, cruelandabusive treatment;
UK\ itii the libel of the wife, when the husband, being of sufficient ability, grossly



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714 HAMAmcR V. TTAMAincR. [DUnoiii

or wantomlj and oraelly refnset or negloote to provide toitablA mahitsnaiiet
for her: Sec. 2. Saeh divorce may also be decreed when either party has
separated from the other without hie or her oonBeot, and haa nnited with a
religions sect or society that professes to believe the relation of husband and
wife void or unlawful, and has continued united with such sect or aocnety for
three years, refusing during that term to cohabit with the other party; or
wu^n either party has been sentenoed to confinement, at hard labor for L'fe or
for five years or more in the state prison or in a jail, or house of oart ecU oo^
and after a divorce for such cause, no pardon granted to the party so sentenced
shall restore such party to his or her conjugal rights: Sec 3. When a divoroe
from bed and board under laws heretofore in force or a divoroe nisi has been
decreed and the parties have lived separately for three consecutive jrsars next
after the decree^ a divorce from the bonds of matrimony may be decreed upon
the petition of the party in whose favor the previous decree was granted; and
when the parties have lived separately for five consecutive years next after
such decree, a divoroe from the bonds of matrimony may be decreed in favor
of either party: Sec. 4. Except as provided in the following section, no
divoroe shall be decreed if the parties have never lived together as husband
and wife in the commonwealth; nor shall a divorce be decreed«fdr a cause
occurring in another state or country, unless, before such cause occurred, the
parties had lived together as husband and wife in the commonwealth, and one
of them lived in the commonwealth at the time when the cause occurred:
Sec 5. When the libelant has resided in the commonwealth for five years
next preceding the filing of the libel, or if the parties were inhabitants of the
commonwealth at the time of their marriafte, when the libelant has been
such an inhabitant for three years next preceding such filing, a divorce may
be granted for any cause allowed by law, whether it occurred in the common-
wealth or elsewhere, unless it appears that the b'belant has removed into the
commonwealth for the purpose of obtaining a divorce: Pub. Stats. Mass.,
1882, c. 14fi, p. 813, annotated. All decrees of divoroe are to be entered nist,
to become absolute after the expiration of six months from the entry thereof,
on application, etc, unless for cause it shall be otherwise ordered: Id., sec 19,
p. 815. And libel for desertion is not to be defeated by a temporary return:
Id., sec 20, p. 815. Foreign divoroe obtained by resident of commonwealth
for cause occuiring there, while the parties resided there, and wliich would
not authorize a divorce in the commonwealth, are invalid: Id., sec 41,
p. 817.

Michigani,^!. Consanguinity and afiSnity; 2. Bigamy; 8. Insanity and
idiocy at time of marriage; 4. Marriage under age of legal consent without
subsequent cohabitation; 5. Force or fraud in consummating the marriage;
6. Sentence of imprisonment for life— in all the foregoing cases, where the
marriage has been solemnized in the state, it is void without decree or legal
process; but marriages between white persons and those wholly or in part
of African descent are valid; 7. Adultery; 8. Physical incapacity at the time
of marriage, if suit is brought within two years; 9. Sentence of imprisonment
for three years or more; 10. Desertion for two years; 11. Habitual drunk-
enness of either party; 12. Court may, in its discretion^ divorce resident
whose husband or wife shall have obtained a divorce in any other statot
Divorces from bed and board forever, or for a limited time, are granted for:
13. Extreme cruelty, whether by personal violence or other means; 14. Utter
desertion for two years; 15. Where the husband, having ability to provide
suitable maintenance for his wife, grossly or wantonly and cruelly refuses or
neglects to do so. The same causes, in the court's discretion, will answer in



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Dec, 1856.] Hamakkb v. FAifAKiBB, 716

ftppUoation for * totd divoroe: 2 Howell's Annotated Steli. lflolL» 1882;
toot. 8211, 8214, 822S, 8224, 8227-8280, 82S0. Ko diToroe ihall be gnated
nnleet the party esliibiting the petition or bill of oomplaint therefor ihall
have rosided in thia state one year immediately preceding the time of ex-
hibiting aaoh petition or bill; or nnleea the marriage was solemnised in this
-state, and the oompUinant shall have resided in this state from the time
of snob marriage to the time of exhibiting the petition or bill: Id., see. 8231.
No diyoroe shall be decreed in any case, when it shall appear that the pe-
tition or bill therefor was founded in or exhibited by ooUnsion between
the parties, nor where the party complaining shall be guilty of the same
erime or miscondnct charged against the respondent: Id., sec. 8232. In
case of adultery, althou^ the fact of adultery be established, the ooorl
may deny a diyoroe when the offense shall appear to have been committed
by the procurement or with the oonnivance of the complainant; or when the
offense charged shall have been forgiven by the injured party, and such for>
giveness be proved by express proof, or by the voluntary cohabitation of the
parties, with the knowledge of the offense, or where the suit shall not have
been brought within 6ve yean after complainant's discovery of the offanset
Id., see. 8281.

Jftmietota. — ^Bialea under eighteen and females under fifteen are incapable
of contracting marriage. Person having a husband or wife living is prohib-
ited from manying; and so are parties who are nearer of kin than first
oonains, computing by rules of the civil law, whether of half or the whole
blood: Stats. Minn., 1878, sees. 2, 3, p. 828. Marriages ars void if con*
tracted within the degrees mentioned, if against the prohibitions of law, or
if tney are bigamous; provided, that if any person whoee husband or wife
Las been absent for five successive years, without being known to such per-
son to be living during that time, marries during the life-time of such absent
husband or wife, the marriage shall be void only from the time that its nullity
is pronounced by a court of competent authority. And consent obtained by
force or fraud, or incapacity of assent from lack of age or understanding, renders
the marriage void from the time its nullity is declared by a competent court
Causes for divorce: 1. Adultery; 2. Impotency; 3. Cruel and inhuman treat*
ment; 4. Sentence of imprisonment to i>enitentiary subsequent to marriage;
A. Willful desertion for three years next preceding the filing ci the complaint;
8. Habitual drunkenness for the space of one year immediately preceding the
filing of the complaint. No divorce shall be granted unless the complainant
has resided in this state one year immediately preceding the time of exhibit-
ing the complaint, except for adultery committed while the complainant was
a resident of this state. In any action brought for a divorce on the ground
of adultery, although the &ot of adultery is established, the court may deny
a divorce in the following cases: 1. When it appears that the offimse was
committed by the procurement or with the connivance of the complainant;
2. When there has been an express forgiveness of the adultery charged, or a
voluntary cohabitation of the parties, with knowledge of the offense; 3.
When the action has not been brought within three years after the discoverv
by the complainant of the offense charged; 4. When it is proved that the
plaintiff has also been guilty of adultery, under such drcomstances as wouk^
have entitled the defendant, if innocent, to a divorce. A separation from
bed and board forever, or for a limited time, may be decreed on the complaint
of a married woman in the following cases: 1. Between any husband and
wife inhabitants of this state; 2. When the marriage shall have been sol*
— *"<— «^ or shall have taken place within this state, and the wife shall be aa



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716 Hamakkr v. TTAifAingp^ [Dlindfl^

aotaal resident at the time of exhibiting her oomphdnt; 8. When the mar-
riage shall have taken place ont of this state, and the parties have become
and remain inhabitants of this state at least one year, and the wife shall be
an actual resident at the time of exhibiting her complaint. And snch sepa-
ration may be decreed for the following causes: 1. The cruel and inhuman
treatment, by the husband, of the wife; 2. Such conduct on the part of the
husband towards his wife as may render it unsafe and improper for her to
cohabit with him; 3. The abandonment of the wife by the husband, an4 his
refusal or neglect to provide for her: Id., sees. 1, 2, 6, 8, 9, 30, 31, pp. 628,
629.

Mi$ns^ppL — 1. Consanguinity and affinity; 2. Natural impotency; 3.
Adultery; 4. Sentence to penitentiary if not pardoned before being sent there;
5. Willful, continued, and obstinate desertion for two years; 6. Habitoal
drunkenness; 7. Habitual cruel and inhuman treatment, marked 4>y personal
violence; 8. Another husband or wife living; 9. Insanity or idio<7 unknown
at marriage; 10. Pregnancy of wife by another man at marriage without her
husband's knowledge. If any person shall take any maid, widow, or wife,
contrary to her will, and shall marry her himsdf, or cause or procure her to be
married to another, every such marriage is void. But in applications for
divorce for adultery, if it should appear that it was committed by collusion
of the parties, for the purpose of procuring a divorce, or if both parties be
guilty of adultery, or if they cohabited after a knowledge of the adultery,
then no divorce shall be granted: Bev. Code Miss., 1871 > sees, 1764, 1767,
1768, 1770.

Mi890un» — 1. When a marriage has been or shall be solenmirod between
two persons, and either party at the time of the contract of marriage was and
still is impotent; 2. Or had a wife or a husband living at the time of the
marriage; 3. Or has committed adultery since the marriage; 4. Or has absented
himself or herself, without a reasonable cause, for the space of one year; &
Or, during said marriage, shall have been convicted of felony or infamous
crime; 6. Or ^hall have been addicted to habitual drunkenness for the space
of one year; 7. Or shall be guilty of such cruel or barbarous treatment as to
endanger the life of the other; 8. Or shall offer such, indignities to the ether
as shall render his or her condition intolerable; 9. Or when the husband shall
be guilty of such conduct as to constitute him a vagrant, within the meaning
of the law respecting vagrants; 10. Or where, prior to the contract of mar-
riage, or the solemnization thereof, either party shall have been convicted of
a felony or infamous crime in any state, territory, or country, without knowl-
edge on the part of the other party of such fact at the time of such marriage;
11. Or where the intended wife, at the time of contracting marriage, or at
the time of the solemnisation thereof, shall have been pregnant by any other
man ihui her intended husband, and without his knowledge at the time of
such solemnization — ^the injured party, for any of the causes above enumer-
ated, may obtain a divorce from the bonds of matrimony. But if it shall
appear to the court that the adaltery, or other injury or offense complained
of, shall have been occasioned by the collusion of the parties, or done with an
intention to procure a divorce, or that the complainant was consenting thereto,
or that both parties have been guilty of adultery, then no divorce shall be
granted: 1 R. S. Mo., 1879, sees. 2174, 2181, annotated.

Montana. — 1. Natural impotency; 2. Bigamy; 3. Adultery subsequent to
marriage if not followed by cohabitation; 4. Willful absence without rea-
sonable cause for one year; 5. Willful absence of one party from the other,



Online LibraryAbraham Clark Freeman John ProffattThe American decisions: cases of general value and authority ..., Volume 65 → online text (page 79 of 115)