TITLE 1. the parties, by any relative of such deceased party, interested to contest the marriage.

Proceedings in suits to annul marriagos.

Evidence to

Bustain alle

gation of nullity.

Effect of sentences of

nullity.

$35. Suits to annul a marriage, shall be by bill, and shall be conducted in the same manner as other suits prosecuted in the courts of equity; and the court shall have the same power to award issues, to decree costs, and to enforce its decrees, as in other cases.

$36. No sentence of nullity of marriage shall be pronounced solely on the declarations or confessions of the parties; but the court shall, in all cases, require other satisfactory evidence of the existence of the facts, on which the allegation of nullity is founded.

$37. A sentence of nullity of marriage, if pronounced during the life-time of the parties, shall be conclusive evidence of the invalidity of the marriage, in all courts and proceedings; but if pronounced after the death of either of the parties to the marriage, it shall only be conclusive as against the parties in the suit, and those claiming under them.

Cases in

which mar

ARTICLE THIRD.

Of Divorces, dissolving the Marriage Contract.

Szc. 38. In what cases marriages may be dissolved for adultery.
39. Bills by whom exhibited; answers may be without oath.

40. Issues to be tried by jury; new trials may be awarded.

41. Upon confession or default, proofs to be taken by master.

42. In what cases divorce may be refused, although adultery be established.

43. When bill filed by wife, legitimacy of issue not affected by divorce.

44. How affected by a divorce in suit brought by husband.

45. Decrees for support, &c. on divorce in suit brought by wife,

46. In such suit, wife to retain her real and certain personal property.

47. Husband's right to property of his wife, on divorce in a suit by him.

48. Wife convicted of adultery, barred of dower and of claim to personal estate of her husband.

49. After divorce for adultery, complainant may marry; but not defendant.

$38. Divorces may be decreed, and marriages may be dissolved, riages may by the court of chancery, whenever adultery has been committed by for adultery. any husband or wife, in either of the following cases:

be dissolved

Bills by wife,

&c. auswers

1. Where both husband and wife were inhabitants of this state, at the time of the commission of the offence:

2. Where the marriage has been solemnized, or has taken place within this state, and the injured party, at the time of the commission of the offence, and at the time of exhibiting the bill of complaint, shall be an actual inhabitant of this state:

3. Where the offence has heen committed in this state, and the injured party, at the time of exhibiting the bill of complaint, is an actual inhabitant of this state.3

$ 39. A bill for a divorce may be exhibited by a wife in her own without oath. name, as well as by a husband. In all cases, the defendant may answer such bill without oath or affirmation.

(3) 2. R. L. p. 197, § 1, 2 & 3.

$40. If the offence charged be denied, the court shall direct a feign- ART 3, ed issue to be made up, for the trial of the facts contested by the pleadings, by a jury of the country, at some circuit court; and it may di- tried by jury. rect a special jury to be struck for such trial, and may make the necessary orders for procuring a list of jurors, and for striking the same; Now trials. and may award a new or further trial of such issue, as often as justice

shall seem to require.4

Struck jury.

take proofs in

$41. If the adultery charged be admitted by the answer, or if the Master to bill be taken as confessed against the defendant, the court shall refer cortain cases. the matter to a master, with directions to take proof of the facts charged, and to report the same to the court with his opinion thereon; and the cause shall be heard on such proof and report, before any final decree shall be pronounced.*

$42. Although the fact of adultery be established, the court may deny a divorce in the following cases:

1. Where the offence shall appear to have been committed by the procurement, or with the connivance, of the complainant:

2. Where the offence charged shall have been forgiven by the injured party, and such forgiveness be proved by express proof, or by the voluntary cohabitation of the parties, with the knowledge of the fact:

3. Where there shall have been no express forgiveness, and no voluntary cohabitation of the parties, but the suit shall not have been brought within five years after the discovery by the complainant, of the offence charged:

4. Where it shall be proved that the complainant has also been guilty of adultery, under such circumstances as would have entitled the defendant, if innocent, to a divorce.

Cases in

which divorce may be

denied, af

though adul tery proved.

of issue when

$43. When the wife shall be the complainant, the legitimacy of Legitimacy any children of the marriage, born or begotten of her before the filing suit brought of the bill, shall not be affected by the decree of dissolution."

by wife.

plainant.

$44. When the husband shall be the complainant, the legitimacy when hus of children, born or begotten before the commission of the offence band is comcharged, shall not be affected by the decree; but the legitimacy of other children of the wife, may be determined by the court, upon the proofs in the cause. In every such case, the legitimacy of all children, begotten before the commencement of the suit shall be presumed, until the contrary shall be shown.

wife and chil

$45. If a wife be the complainant, and a decree dissolving the Support of marriage be pronounced, the court may make a further decree or or- dron on di der against the defendant, compelling him to provide for the mainte- by wife. nance of the children of the marriage, and to provide such suitable

vorce, in suit

TITLE I. allowance to the complainant, for her support, as the court shall deem 'just, having regard to the circumstances of the parties respectively.

In such case, wife to retain

perty.

$46. If a wife be the complainant, and a decree dissolving the cortain pro- marriage be pronounced, and she shall, at the time of pronouncing such decree, be the owner of any real estate, or have in her possession any goods, or things in action, which were left with her by her husband, acquired by her own industry, given to her by devise or otherwise, or to which she may be entitled by the decease of any relative intestate, all such real estate, goods or things in action, shall be her sole and absolute property."

Divorce in

suit brought

not to affect

bis right to

property of his wife.

$47. If a husband be complainant, and a decree dissolving the by husband, marriage be pronounced, the right of the complainant to any real estate owned by the defendant at the time of pronouncing the decree, in her own right, and to the rents and profits thereof, shall not be taken away or impaired, by such dissolution of the marriage; and he shall also be entitled to such personal estate and things in action, as may belong to the defendant, or be in her possession at the time such decree shall be pronounced, in like manner as though the marriage had continued."

Dower, &c.

of wife forfeited by adultery.

Marriage after divorce

S 48. A wife being a defendant, in a suit for a divorce brought by her husband, and convicted of adultery, shall not be entitled to dower in her husband's real estate, or any part thereof, nor to any distributive share in his personal estate.

S49. Whenever a marriage shall be dissolved, pursuant to the for adultery. provisions of this Article, the complainant may marry again during the life time of the defendant; but no defendant convicted of adultery, shall marry again, until the death of the complainant.7

When sepa

rations may

ARTICLE FOURTH.

Of Separations, or Limited Divorces.

SEC. 50. When separations may be decreed, on application of wife.

51. Causes for which such separations may be decreed.

52. Requisites of bill of complaint, in such cases.

53. Ill conduct of wife may be shown in justification.

54. Powers of the court upon decreeing separation.

55. Decrees for support of wife and children, although no separation decreed.

56. When decrees for separation may be revoked.

$ 50. A separation from bed and board forever, or for a limited.

be decreed on time, may be decreed by the court of chancery, on the complaint of a application of married woman, in the following cases :

1. Between any husband and wife, inhabitants of this state:

2. Where the marriage shall have been solemnized, or shall have taken place, within this state, and the wife shall be an actual resident at the time of exhibiting her complaint :

(6) 2 R. L. p. 197, § 5, 6, 7 & 8. (7) Ib. § 4.

8. Where the marriage shall have taken place out of this state, ART. 5. and the parties have become and remained inhabitants of this state, at least, one year, and the wife shall be an actual resident at the time of exhibiting her complaint.8

which they

may be decreed.

$51. Such separations may be decreed for the following causes: Causes for 1. The cruel and inhuman treatment by the husband of his wife: 2. Such conduct on the part of the husband towards his wife, as may render it unsafe and improper for her to cohabit with him:

3. The abandonment of the wife by the husband, and his refusal or neglect to provide for her.s

bill.

$52. The bill of the complainant in every such case, shall speci- Requisitos of fy, particularly the nature and circumstances of the complaint on which she relies, and shall set forth times and places with reasonable certainty.8

bill.

$53. The defendant in any such suit, may be permitted to prove, Defence to in his justification, the ill cor.duct of the complainant; and on establishing such defence, to the satisfaction of the court, the bill shall be dismissed."

crees on s0

$54. Upon decreeing a separation in any such suit, the court may Further demake such further decree, as the nature and circumstances of the case paration, for may require, and may make such order and decree for the suitable support, &o. support and maintenance of the wife and her children, or any of them, by the husband, or out of his property, as may appear just and proper.9 $55. Although a decree for separation from bed and board be not Ib. although made, the court may make such order or decree for the support and decreed. maintenance of the wife and her children, or any of them, by the husband, or out of his property, as the nature of the case renders suitable and proper."

no separation

separation

voked.

$56. Where a decree for a separation forever, or for a limited pe- Decrees for riod, shall have been pronounced, it may be revoked at any time there- may be re after, by the same court by which it was pronounced, under such regulations and restrictions as the court may impose, upon the joint application of the parties, and upon their producing satisfactory evidence of their reconciliation.

ARTICLE FIFTH.

General Provisions, applicable to the two last Articles.

Sec. 57. Married women, in certain cases, deemed inhabitants.

58. Expense of suits, and costs, how to be defrayed.

59. In suits by wife, court may make orders concerning children, &c.

60. Powers of court to enforce orders for support, &c. of wife and children.

$ 57. If a married woman, at the time of exhibiting a bill against Married wo her husband, under the provisions of either of the two last Articles, men, when

(8) 2 R. L. p. 200, § 10. (9) Ib. § 11 & 13.

inhabitants.

TITLE 2. shall reside in this state, she shall be deemed an inhabitant thereof, although her husband may reside elsewhere.10

Expense of suits, & costs.

Ordera re specting cus

children.

$58. In every suit brought, either for a divorce, or for a separation, the court, may, in its discretion, require the husband to pay any sums necessary to enable the wife to carry on the suit, during its pendency; and it may decree costs against either party, and award execution for the same, or it may direct such costs to be paid, out of any property sequestered, or in the power of the court, or in the hands of a receiver. 10

$ 59. In any suit brought by a married woman for a divorce, or for tody, &c. of a separation from her husband, the court in which the same shall be pending, may, during the pendency of the cause, or at its final hearing, or afterwards, as occasion may require, make such order as between the parties, for the custody, care and education of the children of the marriage, as may seem necessary and proper, and may at any thereafter, annul, vary or modify such order.11

How orders for support,

children, may

time

$ 60. Whenever the court shall make an order or a decree, requir&c. of wife & ing a husband to provide for the maintenance of his children, or for an be enforced. allowance to his wife, the court may require such husband to give reasonable security for such maintenance and allowance; and upon the neglect or refusal of the defendant to give such security, or upon the default of him and his surety, to provide such maintenance and allowance, the court may sequester his personal estate, and the rents and profits of his real estate, and may appoint a receiver thereof, and cause such personal estate, and the rents and profits of such real estate, to be applied towards such maintenance and allowance, as to the court shall, from time to time, seem just and reasonable.11

tain cases,

TITLE II.

OF PARENTS AND CHILDREN,

SEC. 1. Wife living separate from husband may have habeas corpus for minor children.

2. Custody of minor child may be given to mother.

3. Order may be annulled, varied or modified.

4. Habeas corpus may be issued for children detained by Shakers

5. When search warrant for concealed child, to be issued.

6. Custody of child, to whom awarded; orders may be revoked, &c.

7. Penalty for secreting, &c. or carrying child out of the state.

Wife, in cor- Si. When any husband and wife shall live in a state of separation, may have ha. Without being divorced, and shall have any minor child of the mar riage, the wife, if she be an inhabitant of this state, may apply to the supreme court for a habeas corpus, to have such minor child brought

beas corpus

for minor children.

before it

(10) 2 R. L. p. 199, § 9, and p. 201, § 14 (11) Laws of 1815, p. 225, § 1, 5 & 11.