142 Mass. 361 | Mass. | 1886
The question raised in this case is, whether the connivance of the husband at one act of adultery is a bar to a divorce for a prior act with another particeps criminis. The libellant contends, that, the adultery of the libellee with Pease having been found, the only thing which can bar the libellant is condonation of that adultery, connivance at that adultery, or the commission by the libellant of some offence which is in itself ground for a divorce. Neither condonation of the adultery with Pease, nor connivance at it, is set up in defence.
The statutes enumerate various causes which will entitle an aggrieved party to an absolute divorce from the bond of matrimony. Pub. Sts. e. 146, § 1. It is well settled that a suitor for divorce cannot prevail, if open to a valid charge, by way of recrimination, of any of the causes of divorce set out in the statute. Cumming v. Cumming, 135 Mass. 386, 389. Recrimination as a bar to divorce is not limited to a charge of the same nature as that alleged in the libel. Handy v. Handy, 124 Mass. 394. It is sufficient if the recrimination charges any one of the causes of divorce, of equal grade, so declared in the statute.
The general principle which governs in a case where one party recriminates is, that recrimination must allege a cause which the law declares sufficient for a divorce. Lyster v. Lyster, 111 Mass. 327. Gumming v. Gumming, ubi supra. Clapp v. Clapp, 97 Mass. 531. Hall v. Hall, 4 Allen, 39.
Lyster v. Lyster was a libel for divorce on the ground of desertion. The libellee justified in leaving the libellant because of his cruel and abusive treatment, and his gross and confirmed habits of intoxication. The court held that ill-treatment or misconduct by the husband, of such a degree or under such circumstances as not to amount to cruelty for which the wife would be entitled to sue for a divorce, might justify her in leaving his home, and prevent his obtaining a divorce for her desertion if she did so. This decision is in accordance with the great weight of American authority. It is not a case of recrimination. The
Our divorce statutes make no provision respecting connivance, collusion, condonation, or recrimination, and this court has assumed that the Legislature “ intended to adopt the general principles which had governed the ecclesiastical courts of England in granting divorces from bed and board, so far as these principles are applicable, and are found to be reasonable.” Robbins v. Robbins, 140 Mass. 528. This assumption does not go so far as to embrace the recent statute law of England in relation to divorce.
Under the English divorce act, 20 & 21 Yict. a. 85, a divorce will not be granted, if the court find that, during the marriage, the petitioner has been accessory to, or conniving at, the adultery of the other party to the marriage, or has condoned the adultery complained of. It has been repeatedly held, under this statute, that connivance on the part of the husband will, in point of law, bar him from obtaining relief, on account of the adultery which he lias allowed to take place. Volenti non fit injuria is the principle upon which the rule has been founded. Rogers v. Rogers, 3 Hagg. Eccl. 57. Phillips v. Phillips, 1 Rob. Eccl. 144, 161. Under this principle, it is not always necessary to show active connivance. If it is proved that there has been a long course of criminal conduct on the part of the wife, of which the husband was cognizant, or of which, by law and presumption, he must be supposed to have been cognizant, he cannot secure relief. Crewe v. Crewe, 3 Hagg. Eccl. 123. The conduct of the husband after being informed of the adultery of his wife, his refusal to interfere with her, or to institute proceedings against her for a divorce, or his long delay in so doing, may not in themselves be connivance, but may be evidence of it. A total indifference to such adultery may lead to the inference of original consent. If there was consent, there was no injury, and the husband cannot ask for relief where he has not been injured.
It has also been held that a husband who connives at an act of adultery by his wife cannot complain of any subsequent act, whether with the same or with another partieeps criminis. Gipps
In Hodges v. Hodges, 3 Hagg. Eccl. 118, it was held that a husband, proceeding against his wife for her gross adultery committed after a separation of five years from him, resulting in the birth of children baptized in his name, was not barred, although, before the separation, he had connived at her adultery with men other than the one with whom this was committed. This case has been doubted and overruled. Stone v. Stone, ubi supra. Rogers v. Rogers, ubi supra. See also Hedden v. Hedden, 6 C. E. Green, 61.
The libellee relies upon the language used by Lord Stowell in Lovering v. Lovering, 3 Hagg. Eccl. 85. In that case, an apprentice was continued in the house, with the husband’s permission, after he knew of great and indecent familiarities between the apprentice and his wife, and until she was guilty of adultery with another. The court found that the facts amounted almost to consent, and showed a degree of delinquency which rendered him unworthy of a remedy; that the husband had connived at' another adulterous act nearly contemporaneously committed with another person. The wife made no defence. “ The ecclesiastical court,” said Lord Stowell, “ requires two things, that a man shall come with pure hands himself, and shall have exacted a due purity on the part of his wife; and if he has relaxed with one man he has no right to complain of another.”
The language of the court was applicable to the facts of the case, and cannot be referred to a state of facts not existing. It could not refer to a prior act of adultery. The facts of the case did not authorize such reference. Whatever misconduct the court found must have been such as conduced to the subsequent
We have been referred to no case where the court has held that connivance was a bar to a divorce for a prior adultery. The English statutes and decisions seem to require that the adultery complained of must in some way be the result of, or connected with, the connivance charged, or the divorce will not be barred. As where a wife sets up in defence her husband’s connivance at an adultery with a different person, prior to the adultery charged, she must prove the prior adultery. Stone v. Stone, ubi supra. Harris v. Harris, 2 Hagg. Eccl. 376, 416. The iniquity which deprives a suitor of a right of justice in a court of equity is not general iniquitous conduct, unconnected with the matter in suit, but evil practice or wrongful conduct in the-particular matter or transaction in respect to which judicial protection or redress is sought. Woodward v. Woodward, 14 Stew. Eq. 224.
We find no authority for laying down the rule, that, under all circumstances, connivance at one adultery is an absolute bar to a divorce for a prior adultery, and we feel disinclined to say that it is not reason for refusing a divorce under some circumstances. The character of the connivance under some circumstances may be so open, gros.s, and revolting, that the court may find that ho injury has been done the husband, and that therefore there is nothing to redress, that the husband has entirely abandoned all right to claim that his wife should be chaste, and that he has thus consented to her prior adultery. He may come before the court with such impure hands, that, upon the soundest considerations of public policy, his divorce should be refused. On the other hand, the circumstances of the connivance may be of such a character, having no connection or relation with the prior adultery, as not to operate as a bar, or otherwise, against the right of the husband to find relief.
In the case at bar, the presiding justice ruled that the record of the former suit was not a bar to maintaining the present libel,
Exceptions overruled.
