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before issuing the license.

HlNtoryi Enacted March 21, 1872; amended March 30, 1874,
Code Amdt.'». 1S73-4. p. 1S6.

■ § 7:{. ( EUTIFIC'ATLS OF MAKKIAGK. The person solemn-
izing a marriage must make, sign, and Indorse upon, or attach
to. the license, a certificate, showing:

1. Ibe fact, time, and place of solemnization; and.

2. The names and places of residence of one or more wit-
nesses to the ceremony.

Ilintnryi Enacted March 21, 1S72: nnwndcd March 30. 1S74.
C.ide Amdts. 1873-4. p. 187.

§74. CERTIFHATE TO I'AHTIF.S AND RKfORDER, He

must, at the request of, and fnr cithor party, make a certified

45



§§ 75-77 CIVIL CODE. [Div.I,Pt.III.

copy of the license and certificate, and file the originals with
the county recorder within thirty days after the marriage.

History: Enacted March 21, 1872; amended by Code Commis-
sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 336, held
unconstitutional; see history, § 4 ante.

Recordation provided for in Kerr's Pocket Pol. C. § 4235,
§ 69a, ante, and § 77, post.

§75. DECLARATIOJf OF MARRIAGE, HOW MADE

(repealed).

History: Enacted March 21, 1872; repealed March 26, 1895,
Stats, and Amdts. 1895, p. 121.

See Kerr's Cyc. C. C. for 6 pars, annotation.

75 C. 1, 60 (applied), 66, 77 (referred to in dis. op.), 16 P. 345,
372, 375, 380; 79 C. 633, 651, 22 P. 26, 131 (referred to); 104 C.
260, 261, 37 P. .944 (construed); 116 C. 304, 311, 48 P. 127 (re-
ferred to); 121 C. 620, 628, 54 P. 143, 66 A. S. 74, 42 L. 343 (ap-
plied); 133 C. 524, 526, 527, 65 P. 1034 (applied); 26 F. 337, 406
(cited as to necessity of acknowledgment, and applied).

§76. DECLARATION WHERE THERE IS NO RECORD.

If no record of the solemnization of a marriage heretofore
contracted, be known to exist, the parties may join in a writ-
ten declaration of such marriage, substantially showing:

1. The names, ages, and residences of the parties.

2. The fact of marriage.

3. That no record of such marriage is known to exist. Such
declaration must be subscribed by the parties and attested
by at least three witnesses.

History: Enacted March 21, 1872; amended March 30, 1874,
Code Amdts. 1873-4, p. 187.

See Kerr's Cyc. C. C. for 3 pars, annotation. *

116 C. 304, 310, 311 (cited with other sections), 312 (held not

applicable), 48 P. 127; 121 C. 620, 629, 66 A. S. 74, 54 P. 143, 42

L. 343 (applied).

§ 77. TO BE ACKNOWLEDGED AND RECORDED. Decla-
rations of marriage must be acknowledged and recorded In
like manner as grants of real property.

History: Enacted March 21, 1872.
46



Tit.I,ch.I,art.II.] testing— recording. §§ 78-79a

See Kerr's Cyc. C. C. for 3 pars, annotation.

(Dis. op.), 75 C. 1, 77, 16 P. 345, 380 (applied); 116 C. 304, 311
(referred to). 314 (held not applicable), 48 P. 127; 121 C. 620,
629, 66 A. S. 74, 54 P. 143, 42 L. 343 (referred to); 26 F. 337, 406,
409 (cited to point that declarations of marriage must he
acknowledged and recorded).

§ 78. EITHER PARTY MAY PRO( EED TO TEST VALID-
ITY OF MARRIAGE. If either party to any marriage denies
the same, or refuses to join in a declaration thereof, the other
may proceed, ])y action in the superior court, to have the
validity of the marriage determined and declared.

History: Enacted March 21, 1872; amended to make it con-
form to new constitution, Feb. 15, 1883, Stats, and Amdts. 1883,
p. 4.

See Kerr's Cyc. C. C. for 4 pars, annotation,

67 C. 185, 194, 195, 7 P. 456, 635, 8 P. 709 (applied); 75 C. 1,
12, 16 P. 345, .350 (erroneously cited for §68); 121 C. 620. 623.
66 A. S. 74. 75, 54 P. 143. 42 L. 343 (applied).

§ 79. 3IARRIA(;E WITHOUT LICEXSE. When unmarried
persons, not minors, have been living together as man and
wife, they may, without a license, be married by any clergj-
man. A certificate of such marriage must, by the clergj'man,
be made and delivered to the parties, and recorded upon the
records of the church of which the clergyman is a repre-
sentative. No other record need be made.

HlDturyt Enacted Feb. 3, 1878, Code Amdts. 1S77-S, p. 75-6.

104 C. 260, 261, 37 P. 944 (applied).

As to whether signing and recording declaration constitutes
solemnization, see Kerr's Cyc. C. C. S 79, note.

§ 71>a. RE((M{I)I\(i DEILARATION (H .>IARRIA<iE. The

provisions of this chapter, so far as they relate to the solemn-
izing of marriages, are not applicable to members of any
particular religious denomination having, as such, any pecul-
iar mode of entering the marriage relation; but such mar-
riages must be declared, as i)rovided in section seventy-six,
and be acknowledged and recorded, as provided in section
seventy-seven. Where a marriage is declared as i)rovided in

47



§ 79a CIVIL CODE. [Div.I.Pt.III.

said section seventy-six, the husband must file said declara-
tion with the county recorder within thirty days after such
marriage, and upon receiving the same the county recorder
must record the same; and if the husband fails to make such
declaration and file the same for record, as herein provided,
he is liable to the same penalties as any person authorized to
solemnize marriages, who fails to make the return of such
solemnization as provided by law.

History: Enacted March 27, 1897, Stats, and Amdts. 1897, p.
186; amended by Code Commission, Act Marcli 16, 1901, Stats,
and Amdts. 1900-1, p. 336, held unconstitutional; see history, § 4
ante; amended and renumbered 79a instead of 791^, March 21,
1905, Stats, and Amdts. 1905, p. 555.

See Kerr's Cyc. C. C. for 2 pars, annotation.

121 C. 620, 629, 54 P. 143, 66 A. S. 74, 42 L. 343 (construed with
§55).

As to marriage on high seas, — see Kerr's Cyc. C. C. § 63, note
pars. 13, 14; § 68, note pars 11, 12; 42 L. 343.



48



Tit.I,ch.I,art.Iir,ch.ir,art.T.] nivoRCE. §§80-82

ARTICLE III.

JUDICIAL DETERMINATION OF VOID MARRIAGE.

§ 80. Void marriages.

§80. VOID 3IAUKIAGKS. Either party to an incestuous
or void marriage may proceed, by action in the superior court,
to have the same so declared.

IlLstory: Enacted March 15, 1876, Code Anidts. 1875-C, p. 09;
amended (clianging from former district to .superior court) April
6, 1880, Code Amdts. (C. C. pt.), p. 4.

CHAPTER IT.

DIVORjCE.

Article I. Nullity, §§82-86.

II. Dissolution of marriage, §§90-107.

III. Causes for denying divorce, §§ 111-132.

IV. General Provisions. §§ 1.36-148.

ARTICLE I.

NULLITY.

I 82. Causes for annulling marrlaRrf>s.

I 83. Actions tlierefor, wlien commenced.

I 84. Children of annulled marriage.

f 85. Custody of children.

S 86. Effect of Judgment of nullity.

§82. CAISKS FOK A>M M>I>G MAKKIACJKS. A mar-
riage may lie annulled for any of the following causes, exist-
ing at the time of the marriage:

1. That the party in whose behalf it is sought to have the
marriage annulled was under the age of legal consent, and
such marriage was contracted without the consent of his or
her parents or guardian, or person having charge of him

49



§ 82 CIVIL CODE. [Div.I,Pt.III.

or her; unless, after attaining the age of consent, such party
for any time freely cohabited with the other as husband or
wife.

2. That the former husband or wife of either party was
living, and the marriage with such former husband or wife
was then in force.

3. That either party was of unsound mind, unless such
party, after coming to reason, freely cohabit with the other
as husband or wife.

4. That the consent of either party was obtained by fraud,
unless such party afterwards, with full knowledge of the
facts constituting the fraud, freely cohabited with the other
as husband or wife.

5. That the consent of either party was obtained by force,
unless such party afterwards freely cohabited with the other
as husband or wife.

6. That either party was, at the time of marriage-, physically
incapable of entering into the marriage state, and such inca-
pacity continues, and appears to be incurable.

History: Enacted March 21, 1872; amended March 30, 1874,
Code Amdts. 1873-4, pp. 187-188.

See Kerr's Cyc. C. C. for 47 pars, annotation.

88 C. 557, 560, 564, 565 (erroneously cited for § 852), 26 P. 366
(correctly cited); 94 C. 446, 464, 29 P. 957, 960 (applied); (C.
Nov. 30, 1892), 31 P. 571, 573, 574, 575 (applied) ; 99 C. 286, 287, 33
P. 844 (applied in construction relative to status of parties in
voidable marriage); 137 C. 26, 27, 69 P. 616 (construed and
applied); 6 C. A. 420, 421, 92 P. 329 (construed with §83,
subd. 2).

As to pregnancy by another, see Kerr's Cyc. C. C. § 58, note
pars. 11-16.

As to who are to be deemed non compos mentis, — -see 29 A. D.
38; 44 A. D. 55.

Below age of consent — Ceremony performed by ship's captain
on high seas, — as to validity, see Kerr's Cyc. C. C. § 79i/^ and
note.

Fraud — as to generally, see Kerr's Cyc. C. C. § 58, note pars.
11-18.

Pregnancy physical defect, as to whether is within meaning
of this section. — See Kerr's Cyc. C. C. § 58 and note.

50



I



Tit.I.ch.II.art.I.] annulment— children. §§ 83, 84

§83. ACTIONS THEREFOK. WHEX (O^HIENCED. An

action to obtain a decree of nullity of nuirria.^e, for causes
mentioned in the preceding section, must be commenced
within the periods and by the parties, as follows:

1. For causes mentioned in subdivision one: by the party
to the marriage who was married under the age of legal
consent, within four years after arriving at the age of con-
sent; or by a parent, guardian, or other person having charge
of such nonaged male or female, at any time before such
married minor has arrived at the age of legal consent.

2. For causes mentioned in subdivision two: by either party
during the life of the other, or by such former husband or
wife.

3. For causes mentioned in subdivision three: by the party
injured, or relative or guardian of the party of unsound
mind, at any time before the death of either party.

4. For causes mentioned in subdivision four: by the party
Injured, within four years after the discovery of the facts
constituting the fraud.

5. For causes mentioned in subdivision five: liy the injured
party, within four years after the marriage.

6. For causes mentioned in subdivision six: by the injured
party, within four years after the marriage.

HiMtory: Enacted March 21, 1S72; aiiK-ndrd March 30, 1S74.
Code Amdts. 1873-4, pp. 188-189.

6 C. A. 420, 422, 92 P. 329 (construod witli § 82).



§84. ( IIILDHKN OF ANNULLED .MAHIMA(iE. A judg-
ment of nullity of marriage does not affect the legitimacy of
children begotten before the judgment.

IllNtory: Enacted March 21, 1872; amended by Code Coinniis-
sion, Act March 16, 1901. Stat.«». and Amdts. 1900-1. p. 337. held
unconstitutional; see history, $ 4 ante; amended March 21, 1905,
p. 555.

See Kerr's Cyc. C. C. for 3 pars, annotation.

57 C. 484, 491 (referred to on question of legitimacy).

61



If

§§ 85, 86 CIVIL CODE. [Div.I,Pt.III.

§85. CUSTODY OF CHILDREN. The court must award
the custody of' the children of a marriage annulled on the
ground of fraud or force to the innocent parent, and may
also provide for their education and maintenance out of the
property of the guilty party.

History: Enacted March 21, 1872.

§ 86. EFFECT OF JUDGMENT OF NULLITY. A judgment
of nullity of marriage rendered is conclusive only as against
the parties to the action and those claiming under them.

History: Enacted March 21, 1872.



52



Tit.I,ch.II,art.II.] DISSOLUTION. §§90,91

ARTICLE II.

DISSOLUTION OF MARRIAGE.

§ 90. Marriage, how dissolved.

§ 91. Effect of divorce.

§ 92. Causes for divorce.

§ 93. Adultery defined.

§ 94. Extreme cruelty, what.

§ 95. Desertion, what.

§ 96. Desertion, how manifested.

§ 97. In case of stratagem or fraud, who commits desertion.

§ 98. In case of cruelty, where one party leaves the other, who

commits desertion.

§ 99. Separation by consent, not desertion.

§ 100. Absence becomes desertion, when.

§ 101. Consent to separate revocable.

§ 102. Desertion, how cured.

§ 103. Wife must abide by husband's selection of home, or it is

desertion on her part.

§10-}. If the place is unfit, and wife refuses to conform, it is

desertion by the husband.

§ 105. Wilful neglect, what.

§ 106. Habitual intemperance, what.

§ 107. Habitual intemperance for one year.

§90. MARUIAGE, HOW DISSOLVED. Marriage is dis-
solved only:

1. By death of one of the parties; or,

2. By the judgment of a court of competent jurisdiction
decreeing a divorce of the parties.

HlMtory: Enacted March 21, 1872; amended March 30, 1874,
Code Amdts. 1873-4, p. 189.

See Kerr's Cyc. C. C. for 9 pars, annotation.

137 C. 26, 27, 69 P. 616 (referred to); 137 C. 129, 134, 137, 138,
139, 144, 69 P. 900 (applied).

§91. EFFECT OF DIVORCE. The effect of a judgment
decreeing a divorce, is to restore the parties to tlie state of
unmarried persons.

History: Enacted March 21, 1872; amended March 30, 1874,
Code Amdts. 1873-4, p. 189.

53



§ 92 CIVIL CODE. [Div.I,Pt.III.

See Kerr's Cyc. C. C. for 3 pars, annotation.

137 C. 129, 133, 134, 137, 138, 139, 144 (applied), 69 P. 900; 140
C. 476, 488, 98 A. S. 73, 74 P. 28 (referred to).

§ 92. CAUSES FOR DIYORCE. Divorces may be granted
for anj^ of the following causes:

1. Adultery.

2. Extreme cruelty.

3. Wilful desertion.

4. Wilful neglect.

5. Habitual intemperance.

6. Conviction of felony.

History: Enacted March 21, 1872; amended March 30, 1874,
Code Amdts. 1873-4, p. 189.

See Kerr's Cyc. C. C. for 71 pars, annotation.

51 C. 543, 544 (applied); 74 C. 489, 492, 5 A. S. 460, 16 P. 248,
249 (applied); 85 C. 251, 255, 256, 24 P. 649, 650, 9 L. 487 (con-
strued and applied); 126 C. 123, 128, 58 P. 456 (referred to); 135
C. 397, 399, 87 A. S. 118, 67 P. 506 (applied); 153 C. 56, 58, 94 P.
244 (cited as to wilful neglect); 153 C. 254, 255, 256, 257, 258,
259, 260, 94 P. 1044, 1045, 1046, 1047 (discussed, with other sec-
tions, concerning non-resident wife's right to sue for main-
tenance).

As to recrimination, see Kerr's Cyc. C. C. § 122 and note, § 622
and note.

Alimony, — as to, see Kerr's Cyc. C. C. §§ 136, 137 and notes.

Assigning to wife on divorce for extreme cruelty. — See Kerr's
Cyc. C. C. §§ 94, 146 and notes.

Counsel fees and costs, — as to, see Kerr's Cyc. C. C. § 137 and
note.

Default — Judgment on, — as to, see Kerr's Cyc. C. C. § 130 and
note.

Disposition after divorce. — See Kerr's Cyc. C. C. §§ 146, 147
and notes.

Evidence — Corroboration, — as to necessity for, see Kerr's
Cyc. C. C. § 130 and note.

Insanity — As defense to action for divorce on tlie ground of
adultery, see Kerr's Cyc. C. C. § 93, note pars. 7-9.

Residence — Allegation and proof of necessary — Complaint and
cross-complaint. — See Kerr's Cyc. C. C. § 92, note pars. 53-55.

Stipulation as to division of, — as to force and effect of, see
Kerr's Cyc. C. C. § 146 and note.

Summons — Service of. — as to, see Kerr's Cyc. C. C. P. §411 and
note.

54



TIt.I,ch.II,art.II.] adultery— cruelty. §§ 93. 94

§93. ADULTEUY DKFINKU. Adultery is the voluntary
sexual intercourse of a married person with a person other
than the offender's liusbaud or wife.

HlMtorr: Enacted Marcli 21, 1872.

See Korrs Cyc. C. C. for 34 pars, annotation.

51 C. 543, 544 (referred to witli otlier sections and held not
iipplioable).

As to Insanity in divorce casi-s, see Kerr's Cyc. C. C. § 92, note
pars. 41, 42.

Admission and confessions of defendant — C<>mpet<'ncy — Siif-
nclency.— See Kerr's Cyc. C. C. § 130 and note; K.-rr's Cyc. C. C.
1'. i 2079 and note.

Di.spositlon of coinnuinity ijroperty on divorce for adultery.
— See post I 146, sub. 1 and note.

Recrimination, — as to generally, see Kerr's Cyc. C. C. J 122
and note.

Second marriage pending appeal — Bigamy. — See Kerr's Cyc.
C. C. § 61 and note.

Second marriage before llnal decree — Bigamy. — See Kerr's
Cyc. C. C. § 61 and note.



§94. EXTHKMK ( lU'ELTY, >VH AT. Hxtreme cruelty is
the wronjiful inlliction of grievous [1] luidily Injury, or griev-
ous [2] mental suffering, upon the other by one parly to the
marriage.

lllMtoryt Knact<'d Marcb 21, 1872: amcMided by Code Commi.s-
slon. Act Marcb 16, lOni. Stats, and Amdts. 1900-1. j). 337, hold
uiicon.stltutional ; see liistory. i 4 aiiti-; .■iniiiidetl M.ircli 7. 190.").
Slats, and Amdts. 1905, p. 75.

See Kerr's Cyc. C. C. for 45 pars, annotation.

61 C. 643. 544 (referred to with other sections ami bold not
applicable): 85 C. 251, 265, 256 (construed and applied); 267, 268.
269 (cited and construed, dis. op.), 24 V. 649, 650, 654, 858, 9 L.
487; 86 C. 219, 224, 24 P. 996 (construed and appllod with other
sections); 95 C. 171. 17fi, 177. 30 P. 298. 16 L. 660 (construed and
applied): 124 C. 651. 652. 57 P. 673 (construed and applied); 148
('. 239, 244, 82 P. 967 (cited as to extreme cruelty).

.\s to findings, generally, see Kerr's Cyc. C C. S 92, note pars.
1-36.

Refusal to permit — as amounting to desertion, see Kerrs
Cyc. C. C. S 95 and note pars. 10-12, §96, note pars. 3-6.

66



§§ 95-97 CIVIL CODE. [Div.I,Pt.III.

§ 95. DESERTIOJf, WHAT. Wilful desertion is the volun-
tary separation of one of the married parties from the other
with intent to desert.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 19 pars, annotation.

51 C. 543, 544 (referred to with other sections); 65 C. 629, 632.
4 P. 6-69, 670 (applied with § 103); 122 C. 253, 255, 256, 54 P. 847
(applied with other sections); 130 C. 574, 577, 62 P. 1064 (re-
ferred to witli "wilful" as used in wilful shooting by officer) ;
134 C. 88, 89, 66 P. 73 (applied with other sections); 142 C. 519,
523, 77 P. 1106 (applied).

As to refusal of marital and sexual intercourse, — see Kerr's
Cyc. C. C. §94, note pars. 43, 44; post §36, note pars. 4, 5.

Condonation, — as to, see Kerr's Cyc. C. C. § 117 and note.



§96. DESERTION, HOW MANIEESTED. Persistent
refusal [1] to have reasonable matrimonial intercourse as
husband and wife, when health or physical condition does
not malce such refusal reasonably necessary, or [2] the
refusal of either party to dwell in the same house with the
other party, when there is no just cause for such refusal, is
desertion.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 11 pars, annotation.

51 C. 543, 544 (referred to); 136 C, 195, 196, 68 P. 694 (ap-
plied); 137 C. 559, 560, 70 P. 628 (construed and applied); 144 C.
625, 627, 78 P. 19 (applied).

§ 97. IN CASE OF STRATAGEM OR FRAUD, WHO COM-
MITS DESERTION. When one party is induced, by the strat-
agem or fraud of the other party, to leave the family dwelling-
place, or to be absent, and during such absence the offending
party departs with intent to desert the other, it is desertion
by the party committing the stratagem or fraud, and not by
the other.

History: Enacted March 21, 1872.

51 C. 543, 544 (referred to); 74 C. 608, 613, 16 P. 518, 520 (ap-
plied with other sections).

56



h



Tit.I,ch.II,art.II.] separation— DESERTION. §§ 98-100

§98. m CASE OF CRUELTY, WHERE ONE PARTY
LEAVES THE OTHER, >VHO COMMITS DESERTION.

Departure or absence of one party from the family dwelling-
place, caused by cruelty or by threats of bodily harm from
which danger would be reasonably apprehended from the
other, is not desertion by the absent party, but it is deser-
tion by the other party.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 11 pars, annotation.

51 C. 543, 544 (section sets^ forth state of facts which may
manifest desertion); 74 C. 608, 613, 16 P. 518, 520 (applied with
other sections); 86 C. 219, 224, 24 P. 996 (distinguished from
§94); 122 C. 395, 397, 398, 55 P. 152 (applied); 134 C. 205, 207,
66 P. 208 (applied).

§99. SEPARATION BY CONSENT NOT DESERTION.

Separation by consent, with or without the understanding
that one of tlie parties will apply for a divorce, is not deser-
tion.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 9 pars, annotation.

74 C. 608, 613, 16 P. 518, 520 (applied with other sections); 106
C. 541, 544, 39 P. 931 (applied with other sections); 140 C. 112,
115, 73 P. 808 (applied with other sections).

Consent — Corrupt connivance, by, — as to, see Kerr's Cyc. C. C.
§ 113 and notes.

Husband may select home — Duty of wife to abide. — See Kerr's
Cyc. C. C. § 103 and note.

§ 100. ABSENCE BECOMES DESERTION, WHEN. Absence
or separalion, proper in itself, becomes desertion whenever
the intent to desert is fixed during such absence or separa-
tion.

History: Enacted March 21, 1872; amended March 30, 1874,
Code Amdts. 1873-4, p. 189.

106 C. 541, 544, 39 P. 031 (referred to).

As to when desertion commences, see Kerr's Cyc. C. C. § 100,
note.

57



§§ 101-103 CIVIL CODE. [Div.I,Pt.III.

§101. CONSENT TO SEPAIUTE REVOCABLE. Consent
to a separation is a revocable act, and if one of the parties
afterwards, in good faith, seeks a reconciliation and restora-
tion, but the other refuses it, such refusal is desertion.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 6 pars, annotation.

106 C. 541, 544, 39 P, 931 (construed and applied); 134 C. 346,
347, 66 P. 367 (applied); 140 C. 112, 115, 117 (construed and
applied), 125 (applied), 71 P. 108, 110 (cited), 73 P. 808, 813
(cited in dis. op.); 147 C. 175, 177, 81 P. 413, 414 (applied).

§ 102. DESERTION, HOW CURED. If one party deserts
the other, and before the expiration of the statutory period
required to make the desertion a cause of divorce, returns
and offers in good faith to fulfil the marriage contract, and
solicits condonation, the desertion is cured. If the other
party refuse such offer and condonation, the refusal shall
be deemed and treated as desertion by such party from the
time of refusal.

History: Enacted March' 21, 1872; amended March 30, 1874,
Code Amdts. 1873-4, p. 190.

See Kerr's Cyc. C. C. for 10 pars, annotation.

65 C. 629, 632, 4 P. 669 (construed and applied); 123 C. 653,
654, 656, 56 P. 554 (applied and held that period in which recon-
ciliation may be made does not apply to offer during pendency
of suit for maintenance); 126 C. 123, 128, 58 P. 456 (construed
and applied with other sections); 71 P. 108, 110 (cited); 147 C.
52, 54, 81 P. 297 (construed).

S 103. WIEE MUST ABIDE BY HUSBAND'S SELECTION
OF HOME, OR IT IS DESERTION ON HER PART. 'The hus-
band may choose any reasonable place or mode of living,
and if the wife does not conform thereto, it is desertion.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 6 pars, annotation.

136 C. 195, 203, 68 P. 694 (applied); 6 C. A. 657, 662, 92 P. 1037
(referred to).

Difference between husband and wife as to place of future
abode, — as to, see Kerr's Cyc. C. C. § 99, note par. 9.

58



I
I

J



Tit.I.ch.II.art.H.] wilful NEGLECT. §§104-107

§10*. II TIIK I'LA(K IS IMIT, AM) WIFi: KKHSKS
TO tO>FOK.M, IT IS DLStlMlO.N UV THE JILSHAM). If

the place or mode of living selected by the husband is unrea-
sonable and grossly unfit, and the wife does not conform
thereto, it is desertion on the part of the husband from the
time her reasonable objections are made known to him.

HlNtor>-: Enacted Marcli 21, 1872.

See Kerr's Cyo. C. C. for 2 pars, annotation.

74 C. 608, 613, 16 P. 518, 520 (referred to witli otlier sections
in discussion).

§ 105. WILFIL >E(;LI:( T, »TIAT. Wilful neglect is [1]
the neglect of the husband to provide for his wife the com-
mon necessaries of life, he having the ability to do so; or it is
[2] the failure to do so by reason of idleness, profligacy, or
dissipation.

lll.H<ory: Enact. -d Marcli 21. 1872.

Sic Ki-rr's Cyc. C. C. for 13 pars, annotation.

51 C. 543. 544 (applied): 104 C. 293. 290, 37 P. 035 (construed
and applied); 130 C. 574. 577, 62 P. 1064 (referred to); 153 C.
56, 5S, 94 P. 244 (api)li.-d).

S 100. IIAHITI AL INTKMPKKAX K, WHAT. Habitual
intemperance is that degree of iiitemperunco from the use
of intoxicating drinks which [I] disqualifies the person a
great i)ortion of the time from properly attending to business,
or [2] which would reasonably infiict a course of great men-
tal anguish upon the innocent party.

IllNtory! Enacted Marcli 21. 1872; aniendcd by ('ode Comniis-
slon, Act March 16, 1901. Stats, and Amdts. 1900-1. p. 337, held
unconstitutional; see history, i 4 ante.

See Kerr's Cyc. C. C. for 11 pars, annotation.

62 C. 176. 178 (applied); 80 C. 528. 629. 22 P. 294 (applied); 96
C. 4. 7. 30 P. 803. S04 (applied >; 130 C. 574, 577, 62 P. 1064 ("wil-



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