Southwick v. Southwick

97 Mass. 327 | Mass. | 1867

Bigelow, C. J.

The evidence in this case does not entitle the libellant to a decree of divorce from the bond of matrimony on the ground alleged in the libel. The word desertion in the statute does not signify merely a refusal of matrimonial intercourse, which would be a breach or violation of a single conjugal or marital duty or obligation only, but it imports a cessation of cohabitation, a refusal to live together, which involves an abnegation of all the duties and obligations resulting from the marriage contract. In the first statute enacted, by which desertion was made a cause of divorce from the bond of matrimony in this Commonwealth, (St. 1838, c. 126,) it was expressly provided that the guilty party should have “ utterly deserted ” the other. In the subsequent statutes on the same subject (St. 1857, c. 228, § 2, and Gen. Sts. c. 107, § 7) the phraseology is altered, but not with an intention to change the degree or kind of desertion which should be deemed an adequate ground of divorce. Lea v. Lea, 8 Allen, 418. If such had been the purpose of the legislature, we think it would have been so expressed in terms and not left to implication.

In England, a suit for the restitution of conjugal rights cannot be maintained on the ground of a total and absolute refusal of matrimonial intercourse. A cessation of cohabitation must be shown to warrant a decree. Orme v. Orme, 2 Addams, 382. Forster v. Forster, 1 Hagg. Con. 144, 154. Desertion, in such proceedings, is held to signify a refusal to live together. In this country, a suit for divorce on the ground of desertion is the remedy which has been substituted for the English process in like cases of a libel for restitution of conjugal rights; but the rules and principles which govern the proceedings are substantially alike in both classes of cases. We cannot doubt that the legislature, in providing that desertion should constitute a valid ground of divorce, intended to use the word in the same sense in which it had always been used in analogous proceedings in the English courts. Libel dismissed^*

* A similar decision was made in the case from Suffolk of John M. Page v. Diana Page, submitted in March, 1867, without argument by B. F. Russell, for the libellant, and on his brief by W. Brigham, for the libellee.