119 Mass. 89 | Mass. | 1875
The original libel was filed under the St. of 1870, e. 404, for utter desertion, which, not having continued for five years, was not a cause for a divorce from the bond of matrimony under the.Gen. Sts. c. 107, § 7.
Under the St. of 1870, the court could not decree a divorce from the bond of matrimony for the cause alleged, but only a divorce nisi, which was in the nature of a divorce from bed and board, did not dissolve the marriage, and could not be made absolute except upon a new petition filed not less than three years from the time of the first decree. St. 1870, c. 404, §§ 2, 3. Graves v. Graves, 108 Mass. 314. Edgerly v. Edgerly, 112 Mass. 53.
The St. of 1873, c. 371, § 2, repealed the provision of the St. of 1870 authorizing the court to grant a divorce nisi, but authorized a divorce from the bond of matrimony to be granted for the cause of desertion continued for three consecutive years before the filing of the libel for such divorce. As applied to cases of desertion, this statute merely changed and simplified the form of remedy, by substituting, for the double proceeding of a libel for a divorce nisi, and a petition to make it absolute at the expiration of not less than three years afterwards, as allowed by the St. of 1870, a single proceeding by a libel for an absolute divorce after the desertion had continued for three years. Such a modification of the remedy, in cases in which no judicial decree had been ren dered, was clearly within the constitutional power of the Legisla
It follows that the decree of divorce nisi, granted in this case since the St. of 1873 took effect, was by inadvertence, without authority, and of no legal effect, and should therefore be set aside and vacated. Edson v. Edson, 108 Mass. 590. Ex parte Crenshaw, 15 Pet. 119. Collins v. Taylor, 3 Green Ch. 163.
Petition granted.
