Hunter v. Hunter

33 A.2d 530 | Pa. Super. Ct. | 1943

Argued April 14, 1943. The marriage which this action seeks to dissolve was, in its inception at least, one of convenience. The parties are the parents of a child born out of wedlock in July 1940. They were married the following October "to give the child a name." They never lived together as man and wife.

The husband brought the action on the ground of desertion. His testimony, which was corroborated and uncontradicted (respondent did not appear), was to the effect that after the marriage on several occasions he asked respondent to come to live with him and make a home, that he was ready and willing to establish a home, but that respondent refused, saying she did not love him and would not live with him under any circumstances. The truth of this testimony and the bona fides of the offer to establish a home were accepted by the master who recommended that a divorce be granted; it was apparently also accepted by the court below. But the court refused the divorce on the ground that there could be no desertion without there first having been, in fact, a common home. It said: "Both habitation and matrimonial cohabitation are essential elements, the abandonment of which, without cause or consent, constitutes desertion, if persisted in for a period of two years."

That this conclusion was wrong is indicated by Spangler v.Spangler, 114 Pa. Super. 308, 174 A. 588; it gives much too narrow a construction to the language of our divorce law. It would mean that a spouse who wilfully refused cohabitation from the inception of the marriage could forever defeat the right of the injured spouse to a divorce. Such a construction would be wholly unreasonable.

The decree is reversed and the record is remitted to the court below with direction to enter a decree of absolute divorce.