Edgerly v. Edgerly

112 Mass. 53 | Mass. | 1873

Gbay, J.

The husband, in answer to the wife’s libel for a divorce for desertion and cruel and abusive treatment, having alleged that her conduct was so lewd and improper as to justify him in refusing to live with her, and having introduced testimony in support of that allegation, the decree of the court, granting her a divorce nisi under the St. of 1870, c. 404, for the causes set forth in that libel, necessarily involved an adjudication that she had not been guilty of such conduct, and of course not guilty of any act of adultery before the filing of that libel. That decree, (unless impeached and set aside for fraud, of which there is no pretence in this case,) is therefore a bar to his libel for a decree from the bond of matrimony on the ground of such acts of adultery. Lewis v. Lewis, 106 Mass. 309. Lyster v. Lyster, 111 Mass. 327. Finney v. Finney, L. R. 1 P. & D. 483. As the only causes of divorce alleged in the libel of the husband are acts oi adultery committed by the wife before filing her former libel,

Sis libel must be dismissed.

But a divorce nisi under the St. of 1870, for one of the causea which would have previously entitled the libellant to a divorce from bed and board, is equivalent to such a divorce, authorizing the parties to live apart, but not dissolving the bond of matrimony until made absolute by the court by a new decree upon a new petition after they have continued to live separately for five, or at least three years. Graves v. Graves, 108 Mass. 314, 320. So long as the bond of matrimony is not absolutely dissolved, the commission of adultery by either party is equally a breach of the marital obligation, whether they are living together or separately: and the fact that the innocent party has already, for a less heinous violation of marital duty, obtained a qualified and incomplete divorce, which, if the parties continue to live apart for a certain time, may be made absolute, affords no reason why that party should be debarred from immediately seeking an absolute and complete divorce for an offence which there is nothing to excuse or palliate, and which is declared by statute to be of itself a cause for the final dissolution of the matrimonial relation. Geils v. Geils, 1 Macq. 255. Ritchie v. Ritchie, 4 Macq. 162. Hulse v. Hulse, L. R. 2 P. & D. 259. The decree nisi is therefore no bar to the maintenance of the wife’s libel, for adultery committed by the husband since the former decree, and

Ser libel must stand for hearing.