페이지 이미지
PDF
ePub

ARTICLE III.

Causes for Denying Divorce. Section

Section 111. Divorces denied, showing. 123. Defense, condonation. 112. Connivance.

124. Divorce, denied, when. 113. Corrupt consent.

125. Time and presumption. 114. Collusion.

126. Presumption denied. 115. Condonation.

127. Limitations. 116. Requisite to same.

128. Residence of parties. 117. Condonation, what implies. 129. Residence, proof required. 118. Condonation, evidence. 130. Default, not allowed. 119. Condonation, when can only 131. Decision, interlocutory judgbe made.

ment. 120. Void condonation.

132. Judgment, final after one 121. Revocation.

year. 122. Recrimination.

111. Divorces must be denied upon showing:
1. Connivance; or,
2. Collusion; or,
3. Condonation; or,
4. Recrimination; or,
5. Limitation and lapse of time.

112. Connivance is the corrupt consent of one party to the commission of the acts of the other, constituting the cause of divorce.

113. Corrupt consent is manifested by a passive permission, with intent to connive at or actively procure the commission of the acts complained of.

114. Collusion is an agreement between husband 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.

115. Condonation is the conditional forgiveness of a matrimonial offense constituting a cause of divorce.

116. The following requirements are necessary to condonation:

1. A knowledge on the part of the condoner of the facts constituting the cause of divorce;

2. Reconciliation and remission of the offense by the injured party; 3. Restoration of the offending party to all marital rights.

117. Condonation implies a condition subsequent; that the forgiving party must be treated with conjugal kindness.

118. Where the cause of divorce sonsists of a course of offensive conduct, or arises, in cases of cruelty from excessive acts of ill-treatment which may, aggregately, constitute the offense, cohabitation, or passive endurance, or conjugal kindness, shall not be evidence of condonation of any of the acts constituting such cause, unless accompanied by an express agreement to condone. 1873-190.

119. In cases mentioned in the last section, condonation can be made only after the cause of divorce has become complete, as to the acts complained of. 1873-190.

120. A fraudulent concealment by the condonee of facts constituting a different cause of divorce from the one condoned, and existing at the time of condonation, avoids such condonation.

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,

2. When the condonee is quilty 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.

122. Recrimination is a showing by the defendant of any cause of 'divorce against the plaintiff, in bar of the plaintiff's cause of divorce.

123. Condonation of a cause of divorce, shown in the answer as a recriminatory defense, is a bar to such defense, unless the condonation be revoked, as provided in section one hundred and twenty-one, or two years have elapsed after the condonation, and before the accruing or completion of the cause of divorce against which the recrimination is shown. 1873––190.

124. A divorce must be denied:

1. When the cause is adultery and the action is not commenced within two 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 two years after a pardon, or the termination of the period of sentence.

3. In all other cases when there is an unreasonable lapse of time before the commencement of the action. 1873–191.

125. Unreasonable lapse of time in such a delay in commencing the action as establishes the presumption that there has been a connivance, collusion, or condonation of the offense, or full acquiescence in the same, with intent to continue the marriage relation notwithstanding the commission of such offense.

126. The presumptions arising from lapse of time may be rebutted by showing reasonable grounds for the delay in commencing the action.

127. There are no limitations of time for commencing actions for divorce, except such as are contained in section one hundred and twenty-four.

128. A divorce must not be granted unless the plaintiff has been a resident of the state one year, and of the county in which the action is brought three months, next preceding the commencement of the action; provided, that a cross-complainant in an action for divorce need not be or have been a resident of the state or of the county in which the action is brought or pending in order to entitle such crosscomplainant to a divorce in said action; and provided, further, that in an action for divorce a cross-complainant must personally verify the cross complaint. 1911-686.

129. In actions for divorce the presumption of law that the domi

cile of the husband is the domicile of the wife, does not apply. After separation, each may have a separate domicile, depending for proof upon actual residence, and not upon legal presumptions.

130. No divorce can be granted upon the default of the defendant or upon the uncorroborated statement, admission, or testimony of the parties, or upon any statement or finding of fact made by a referee; but the court must, in addition to any statement or finding of the referee, require proof of the facts alleged and such proof if not taken before the court, must be upon written questions and answers, 1873–191.

131. In actions for divorce, the court must file its decision and conclusions of law as in other cases, and if it determines that no divorce shall be granted, final judgment must thereupon be entered accordingly. If it determines that the divorce ought to be granted, an interlocutory judgment must be entered, declaring that the party in whose favor the court decides is entitled to a divorce. After the entry of the interlocutory judgment, neither party shall have the right to dismiss the action without the consent of the other.1915—209.

132. When one year has expired after the entry of such interlocutory judgment, the court on motion of either party, or upon its own motion, may enter the final judgment granting the divorce, and such final judgment shall restore them to the status of single persons, and permit either to marry after the entry thereof; and such other and further relief as may be necessary to complete disposition of the action, but if any appeal is taken from the interlocutory judgment or motion for a new trial made, final judgment shall not be entered until such motion or appeal has been finally disposed of, nor then, if the motion has been granted or judgment reversed. The death of either party after the entry of the interlocutory judgment does not impair the power of the court to enter final judgment as hereinbefore provided; but such entry shall not validate any marriage contracted by either party before the entry of such final judgment, nor constitute any defense of any criminal prosecution made against either. 1903.–76.

ARTICLE IV.

General Provisions. Section

Section 136. Divorce denied, mainten- 142. Withholding support, wife. ance.

143. Property liable generally. 137. Alimony, permanent sup- 144. Legitimacy of issue. port.

145. Same. 138. Minors, maintenance.

146. Disposition of community 139. Family support.

property. 140. Security, maintenance and 147. Same alimony.

148. Appealable order. 141. Property liable.

136. Though judgment of divorce is denied, the court may, in an action for divorce, provide for the maintenance by the husband, of the wife and children of the marriage, or any of them. 1905-634.

137. When an action for divorce is pending, the court may, in its discretion, require the husband to pay as alimony any money necessary to enable the wife to support herself and her children, or to prosecute or defend the action. When the husband willfully deserts the wife or when the husband willfully fails to provide for the wife or when the wife has any cause of action for divorce as provided in section ninety-two of this code, she may, without applying for divorce, maintain in the superior court an action against him for permanent support and maintenance of herself or of herself and children. During the pendency of such action the court may, in its discretion, require the husband to pay as alimony any money necessary for the prosecution of the action and for support and maintenance, and execution may issue therefor in the discretion of the court. The court, in granting the wife permanent support and maintenance of herself, or of herself and children, in any such action, shall make the same disposition of the community property and of the homestead, if any, as would have been made if the marriage had been dissolved by the decree of a court of competent jurisdiction. The final judgment in such action may be enforced by the court by such order or orders as in its discretion it may from time to time deem necessary, and such order or orders may be varied, altered, or revoked at the discretion of the court. 1917–35.

138. In actions for divorce the court may, during the pendency of the action, or at the final hearing, or at any time thereafter during the minority of any of the children of the marriage, make such order for the custody, care, education, maintenance and support of such minor children as may seem necessary or proper, and may at any time modify or vacate the same. 1905--43.

139. Where a divorce is granted for an offense of the husband, the court may compel him to provide for the maintenance of the children of the marriage, and to make such suitable allowance to the wife for her support, during her life, or for a shorter period, as the court may deem just, having regard to the circumstances of the parties respectively; and the court may, from time to time, modify its orders in these respects.

140. The court may require the husband to give reasonable security for providing maintenace or making any payments required under the provisions of this chapter, and may enforce the same by the appointment of a receiver, or by any other remedy applicable to the case.

141. In executing the five preceding sections the court must resort: 1. To the community property; then, 2. To the separate property of the husband.

142. When the wife has either a separate estate, or there is community property sufficient to give her alimony or a proper support, the court, it its discretion, may withhold any allowance to her out of the separate property of the husband.

143. The community property and the separate property may be subjected to the support and education of the children in such proportions as the court deems just.

144. When a divorce is granted for the adultery of the husband, the legitimacy of children of the marriage begotten of the wife before the commencement of the action is not affected.

145. When a divorce is granted for the adultery of the wife, the legitimacy of children begotten of her before the commission of the adultery is not affected; but the legitimacy of other children of the wife may be determined by the court, upon the evidence in the case.

146. In case of the dissolution of the marriage by the decree of a court of competent jurisdiction, the community property, and the homestead, shall be assigned as follows:

1. If the decree be rendered on the ground of adultery, or extreme cruelty, the community property must be assigned to the respective parties in such proportions as the court, from all the facts of the case, and the condition of the parties, may deem just.

2. If the decree be rendered on any other ground than that of adultery or extreme cruelty, the community property shall be equally divided between the parties. .

3. If a homestead has been selected from the community property, it may be assigned to the innocent partv, either absolutely, or for a limited period, subject in the latter case, to the future disposition of the court, or it may, in the discretion of the court, be divided, or be sold and the proceeds divided.

4. If a homestead has been selected from the separate property of either, it shall be assigned to the former owner of such property, subject to the power of the court to assign it for a limited period to the innocent party. 1873–191.

147. The court, in rendering a decree of divorce, must make such order for the disposition of the community property, and of the homestead, as in this chapter provided, and, whenever necessary for that purpose, may order a partition or 'sale of the property and a division or other disposition of the proceeds. 1873–192.

148. The disposition of community property, and of the homestead, as above provided, is subject to revision on appeal in all particulars, including those which are stated to be in the discretion of the court. 1873–192.

CHAPTER III.

Husband and Wife. Section

Section 155. Husband and wife obliga 170. Wife's pre-marriage debts. tions.

171. Separate property liable. 156. Husband, head of family. 171a. Torts. 157. In other respects their in- 172. Community personal propterests separate.

erty. 158. Either may make contract. 172a. Community real property. 159. Property relations.

172b. Property in general, one 160. Separation agreement.

spouse insane. 161. Joint tenants.

172c. Proceedings, generally. 162. Wife's separate property. I 172d Court order. 163. Husband's separate property. 173. No dower 164. Community property gener- 174. Wife's support. ally.

175. Wife abandoning. 165. Inventory, wife's property. 176. Wife, support husband. 166. Filing inventory.

177. General rights. 167. Wife's contract, community 178. Marriage settlement. property.

179. When recorded. 168. Wife's earnings, husband's 180. Effect. debt.

181. Minors, marriage settlement. 169. Same, living separate.

155. Husband and wife contract toward each other obligations of mutual respect, fidelity and support.

156. The husband is the head of the family. He may choose any reasonable place or mode of living, and the wife must conform thereto.

« 이전계속 »