53 Vt. 208 | Vt. | 1880
The opinion of the court was delivered by
This is a libel for divorce on the ground of intolerable severity, and was dismissed by the County Court, that court holding that the contract entered into between the libellee and the father of the libellant, acting in her behalf, after the separation, operated a defence to the petition for the cause alleged, which had accrued before the contract was made.
The point is made in behalf of the libellant that the question should have been raised by plea instead of motion, as it was based on matters dehors the record. This would be the correct view, except that it appears that this contract was treated on the hearing in the County Court as though properly in the case for consideration, and that there was no material dispute about it, and that the decision of that court was invoked by both parties as to the legal effect of that contract upon this petition. Under these circumstances we think the case should be treated here as the parties treated it in the County Court, and be decided upon the merits, no technical question of pleading or practice appearing to have been- raised in that court.
The question as before stated is as to the effect of this contract, under the circumstances disclosed upon this petition for divorce. It will be noticed that this contract- was entered into after the separation and through the intervention of a person acting for the wife. It is not the policy of the law to encourage separations between husbands and wives. The rule as established in many cases is, that articles calculated to favor a separation which has not yet taken place will not be supported. Durant v. Titley, 7 Price, 577; St. John v. St. John, 11 Ves. 526; Westmeath v. Westmeath, Jac. 126.
But as stated by Cooley, Ch. J., in Randall v. Randall, 37 Mich. 563: “ When a separation has actually taken place, or
In the English Ecclesiastical Courts it is held that a voluntary deed of separation between husband and wife is not per se a bar to a suit for a restitution of marital rights or to a petition for divorce. Durant v. Durant, 1 Hagg., 733, (3 Eng. Ecc. R., 310); 1 Bishop, s. 634, and n. 3. But there are other cases where the deed, taken in connection with the circumstances under which it was given, and under which the application for divorce was made, and with the conduct of the parties, was held to constitute a defence, and the application was denied. Mathews v. Mathews, 1 Swabey & Trist., 161; Williams v. Williams, 35 Law, J., decided in 1866. We think this case belongs to that class where the parties should be held to their own settlement; and that the deed of separation, under the circumstances, is a good defence to this petition. See Brown v. Brown, 5 Gill, 249; Hunt v. Hunt, 32 Law, J., Rep. 168; J. G. v. H. G., 33 Md. 401.
The judgment of the County Court is affirmed.