SECTION 129. Proof of actual residence required. Presumptions do not apply. 130. Additional rules of practice in divorce cases. 131. Additional affirmative statements required in complaint. SEC. 112. Divorces must be denied upon showing 1. Connivance; or, 2. Collusion; or, Divorces denied, on showing what. 3. Condonation; or, 4. Recrimination; or, 5. Limitation and lapse of time. [New section.] Bish. on Mar. and Div., Secs. 28, 36, 74. what. SEC. 113. Connivance is the corrupt consent of one Connivance, party to the commission of the acts of the other, constituting the cause of divorce. [New section.] Bish. on Mar. and Div. (4th ed.), Sec. 5. SEC. 114. Corrupt consent is manifested by passive permission with intent to connive at or actively procure the commission of the acts complained of. [New section.] Bish. on Mar. and Div. (4th ed.), Sec. 6. Corrupt conmanifested. sent, how what, SEC. 115. Collusion is an agreement between husband Collusion, and wife, that one of them shall commit, or appear to have committed, or to be represented in Court as having committed, acts constituting a cause of divorce, for the purpose of enabling the other to obtain a divorce. [New section.] Bish. on Mar. and Div. (4th ed.), Sec. 28. tion, what. SEC. 116. Condonation is the conditional forgiveness Condonaof a matrimonial offence constituting a cause of divorce. [New section.] Benkert vs. Beakert, 32 Cal., 467. SEC. 117. The following requirements are necessary to condonation: 1. A knowledge on the part of the condonor of the facts constituting the cause of divorce. 2. Reconciliation and remission of the offence by the injured party. 3. Restoration of the offending party to all marital rights. 4. An implied condition subsequent, that the forgiving party shall be treated with conjugal kindness. Requisites to condonation. Evidence of SEC. 118. Where the cause of divorce consists of a condonation. Condonation, when operates to bar divorce. Concealment of tacts in certain case makes con course of offensive conduct covering the prescribed statutory period, or arising, in case of cruelty, from successive acts of ill treatment which may, aggregately, constitute the offence, cohabitation, or passive endurance, or conjugal kindness, shall not be evidence of condonation of any part of the facts or period constituting such causes, unless accompanied by an express agreement to condone. [New section.] Bish. on Mar. and Div. (4th ed.), Sec. 50. SEC. 119. In cases mentioned in the last section, only after the cause of divorce has become complete, as to the acts complained of and the period of their continuance, can condonation be made that will operate to bar divorce or exclude evidence covering any portion of the acts or time relied upon to constitute the cause. Even in such cases, further efforts to live with and reform the offending party must not, unsupported by an express agreement of condonation made without undue influence, be construed as evidence of condonation. [New section.] Bish, on Mar. and Div. (4th ed.), Sec. 63, "Though such party might be willing to give the other a fair trial of future matrimonial fidelity, if sure of retaining his remedy," yet would not, if the remedy was in danger of being lost in such trial. SEC. 120. A fraudulent concealment, by the condonee, of facts constituting a different cause of divorce from the donation one condoned, and existing at the time of condonation, makes void such condonation. void. Condonation, how revoked. Bish. on Mar. and Div. (4th ed.), Secs. 65, 66; Demp ster vs. Dempster, 2 Swab. & T., 438, 44. SEC. 121. Condonation is revoked, and the original cause of divorce revived 1. When the condonee commits acts constituting a like or other cause of divorce; or, Palmer vs. Palmer, 2 Swab. & T., 61, 62; Bish. on Mar. and Div., Sec. 64. 2. When the condonee is guilty of great conjugal unkindness, not amounting to a cause of divorce, but sufficiently habitual and gross to show that the conditions of condonation had not been accepted in good faith or not fulfilled. Bish. on Mar. and Div., Sec. 53; Durant vs. Durant, 1 NOTE. As to Subd. 2, Mr. Bishop, above cited, says: tion, what. SEC. 122. Recrimination is a showing by the defend- Recrimina ant of any cause of divorce against the plaintiff, in bar of the plaintiff's cause of divorce. [New section.] 2 Bish. on Mar. and Div., Sec. 75. NOTE. This simple section settles many conflicting points arising from the practice of leaving with the Courts a wide discretion as to what degree of bad conduct or what degree of proof of causes of divorce shall be required when they are shown in recrimination, or whether unlike causes of divorce can be so shown. SEC. 123. Condonation of a cause of divorce shown in the answer as a recriminatory defence is a bar to such defence when the condonee has fully performed the mar ital duties, and is without reproach since the condonation; or, if three years or more has elapsed after the condonation and before the accruing or completion of the cause of divorce, against which the recrimination is shown. [New section.] Bish. on Mar. and Div., Secs. 97-100. NOTE. The difficulty of this subject will be better comprehended by reading the sections above cited. It would seem better to have some rule, even if it sometimes works a hardship, than to have confusion arising from deciding each case upon its own merits. SEC. 124. A divorce must be denied 1. When the cause is adultery and the action is not commenced within five years after the commission of the act of adultery, or after its discovery by the injured party; or, 2. When the cause is conviction of felony, and the action is not commenced before the expiration of one year after the termination of the period of sentence. 3. In all other cases, when there is an unreasonable Lapse of time estab presumptions. lapse of time after the commission of the offence and before the commencement of the action. [New section.] SEC. 125. Lapse of time is such an unreasonable delay lishes certain in commencing the action as establishes the presumption that there has been connivance, collusion in or condonation of the offence, or full acquiescence in the same, with intent to continue the marriage relation notwithstanding the commission of such offence. Presump tions may be rebutted Limitation of time. Divorces granted, when. [New section.] Bish. on Mar. and Div. (4th ed.), Sec. 108. SEC. 126. The presumptions arising from lapse of time may be rebutted by showing reasonable grounds for the delay in commencing the action. [New section.] Bish. on Mar. and Div. (4th ed.), Sec. 106. SEC. 127. There are no limitations of time for commencing actions for divorce, except such as are contained in Sec. 124 The provisions of the CODE OF CIVIL PROCEDURE do not apply to actions for divorce, so far as they relate to the limitations of such actions. [New section.] NOTE. At present there is no specific limitation in divorce The only statute upon the subject is the Act of 1850 (Stats. 1850, 343), as follows: cases. "An action for relief not herein before provided for, must be commenced within four years after the cause of action shall have accrued." The New York Civil Code provides four years limitation in cases of adultery. Upon a careful examination of the laws of the different States upon the subject, it appears very difficult to establish any exact rule of time, however desirable such a rule might be. There are so many instances of efforts at reformation-so much waiting and hoping before finally attempting to break, judicially, the marriage relation-that any arbitrary rule which would force the party to commence an action or lose the remedy, would defeat the discharge of the most Christian duties arising from the relation or deprive the party of all relief when all efforts fail. This section (lapse of time) is substantially the present English statute, as expanded by rules which have been established by the Courts in its construction. See Pellew vs. Pellew, 1 Swab. and Trist., p. 553'; also, Matthews vs. Matthews, 1 Swab. and Trist., p. 499. SEC. 128. A divorce must be granted only 1. When the marriage took place in this State; or, 2. When both husband and wife were actual inhabitants of this State at the time of the commission of the acts constituting the cause of divorce; or, 3. When the injured party, at the time of the commission of the acts and at the commencement of the action, was an actual inhabitant of this State; or, 4. When the acts were committed in this State, and the injured party, at the commencement of the action, was an actual inhabitant of this State; or, 5. When the plaintiff has been an actual inhabitant of this State one year next preceding the commencement of the action, and the cause of divorce is extreme cruelty, wilful neglect, wilful desertion or habitual intemperance, and any part of the course of conduct or statutory period of time required to make the offence complete, has occurred or elapsed in this State and a part in another State. NOTE.-New York Civil Code, Sec. 60. First paragraph omitted, the rest enlarged to extend to all cases, instead of being limited to adultery. Subd. 5 is new. SEC. 129. In actions for divorce, the presumption of law that the domicile of the husband is the domicile of the wife, does not apply. After separation, cach may have a separate domicile, depending for proof upon actual residence and not upon legal presumptions. Kashaw vs. Kashaw, 3 Cal., 312; N. Y. C. C., Sec. 711; SEC. 130 The rules of practice in actions for divorce, are those embraced in the CODE OF CIVIL PROCEDURE, with the following additional requirements: When service of summons is made by publication, under the provisions of Secs. 411 and 412, CODE OF CIVIL PROCEDURE, the Court, before making the order for the publication of summons, must examine the plaintiff as to the residence of the defendant, and may require affidavits and make such further orders for the publication of summons in newspapers puolished at or near the place of marriage and of last domicile, as may be deemed necessary to secure notice to the defendant. No divorce shall be granted until proof is made of personal service on defendant or compliance with such orders of publication. |