78 Me. 548 | Me. | 1887
Lead Opinion
The power of the court to decree divorces, is derived solely from the statute. It has no common law jurisdiction over such matters. It can decree a divorce for such cause only as the legislature authorizes. The only statute authority relied upon in this case, is that clause authorizing the court to decree a divorce for " utter desertion continued for three consecutive years, next prior to the filing of the libel.”
This case, therefore, presents the question whether the legislature, by that statute, intended to authorize a divorce where one party, without good cause, denies the other sexual intercourse for three consecutive years.
In England formerly, divorces were not allorved for desertion. The only remedy for such a wrong, was a suit in the Ecclesiastical courts for the restitution of conjugal rights. But, those courts, while requiring the offending party to return and live with the libellant, never undertook to compel the granting of sexual intercourse. They made a clear distinction between " marital intercourse,” (sexual intercourse) and "marital cohabitation” (living together). The latter was a right to be enforced by the courts. The former was a right to be enforced only in foro confidential. Lord Si'OWEim, in Foster v. Foster, 1 Hag. Con. 154, said, " the duty of matrimonial intercourse cannot be compelled by this court, though matrimonial cohabitation may.” In Orne v. Orne, 2 Adams, 382, the precise question arose.
It was also early held in England that such refusal was not an act of cruelty. Aguilar v. Aguilar, 1 Haggard, 776. It has been held in America that such refusal is not an act of cruelty, and that it will not justify desertion, nor any other marital dereliction by the other party. Reid v. Reid, 24 N. J. Eq. 332; Eshback v. Eshback, 23 Pa. St. 343; Cowles v. Cowles, 112 Mass. 298. It has also been expressly held that such refusal is not the desertion contemplated by the statutes authorizing divorces for desertion. Southwick v. Southwick, 97 Mass. 327; Steele v. Steele, 1 McArthur (D. C.), 505.
Decisions are cited from the courts of some other states, which seem to hold the contrary doctrine. There is a difference between the statutes of those states, and our statute. Our statute uses the phrase, " utter desertion.” The statutes upon which the opposing decisions are based, omit the word, utter. The language of our statute, enacted in 1883, is the same verbatim as that in the Massachusetts statute (Pub. Stats, of 1882, c. 143, § 1), which had already received judicial construction in Southwick v. Southwick, supra. The inference is, that our legislature in using the same language, intended the same construction.
Sexual intercourse is only one marital right or duty. There are many other important rights and duties. The obligations the parties assume to each other, and to society, are not dependent on this single one. Many of these obligations, fidelity, sobriety, kind treatment, &c., have legal sanctions, and can be enforced, or their breach remedied by legal process. This obligation in question is of a nature so personal and delicate, and dependent so much on sentiment and feeling, that the English Ecclesiastical courts, though reaching far-into the privacy of domestic life, have stopped short of this. We do not think our legislature intended to call the denial of this one obligation an "utter desertion,” while the party might be faithfully and
Exceptions overruled.
Concurrence Opinion
I concur in the opinion, as T understand it to hold that refusal of sexual intercourse does not amount to utter desertion, so long as other marital rights and duties are enjoyed and performed under the marital relation ; and that, it is not of itself, in law, a cause for divorce; but that, whether from long continuance without cause, in extreme cases, it may not become " cruel and abusive treatment,” is a question of fact, to be determined in each particular case, upon its own particular facts and circumstances. Holyoke v. Holyoke, 78 Maine, 404.
Concurrence Opinion
I concur in the result arrived at by Judge Eviery, and agree to the statement that a refusal of marital intercourse, while marital cohabitation continues, does not amount to "utter desertion,” a cause of divorce prescribed by our statutes.
But so far as the opinion of the learned Judge carries an implication that a refusal of marital intercourse may not be so extreme as to amount to " cruel and abusive treatment,” another cause of divorce prescribed by our statutes of divorce, I do not concur. Impotence is a cause of divorce in this State. What is the difference to the husband, whether the wife can not, or will not, assent to marital intercourse ? If a divorce lies in the first case, a fortiori should it in the latter- — when the case presents an inexcusable and long continued refusal — not such as this case— but a clearly extreme case.
