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tion, will not bar a sentence of divorce at the suit of the husband, on proof of adultery committed by the wife.(c)
Another bar to a suit for a divorce is condonation or forgiveness of the alleged injury. If the party accused of adultery shall prove that the accuser before the commencement of the suit had probable knowledge of the crime committed, and yet afterwards cohabited with the accused, in such case the accuser shall not obtain a sentence of divorce, for the crime shall be supposed to have been remitted.(d) Condonation is either express or implied; it is express when signified by words or writing, and implied from the conduct of the parties, as when, for instance, after reasonable knowledge of the infidelity of the other, the parties continue to live in a state of matrimonial connection.(e) Condonation may be collected from a variety of facts and circumstances, so as to bar the right of divorce.(f) The force of condonation as a bar varies according to circumstances. The condonation by a husband of a wife's adultery, still more repeated reconciliation after repeated acts of adultery, create a bar of far greater effect than does the condonation by a wife of repeated acts of cruelty.(g)
Condonation bars sentence; but not necessarily where there is subsequent adultery, though it will induce the court to look with particular jealousy into the case ; for if the adultery is forgiven with such extreme facility as to show no sense of injury, and no care is taken to prevent it from happening again, then the husband has no ground of complaint, for he *has encouraged the adultery by his
[ *446 ] conduct; volenti non fit injuria ; and courts allowing such facility, instead of being the guardians of morality encourage corruption.(h)
Condonation extinguishes the right of complaint, except for subse. quent acts, and is accompanied with an implied condition that the injury shall not be repeated, and that a repetition of the injury takes away the condonation and operates as a revivor of former acts.(i) If a wife forgives earlier adultery, upon condition and assurance of
(c) Sullivan v. Sullivan, 2 Addams, 299 ; (e) Hæc autem remissio (condonatio) est ante, pp. 383. 419. 435.
duplex, quædain expressa, quando, scilicet (d) See Conset, 281; Cockburn, 127, pl. 4. verbis expressis innocens conjux adulterium Similiter ; si actio divortii, propter adulte. sibi reconciliat, condonans delictum. Alia rium, instituta fuerit, per mulierem contrà autem est remissio tacita. Ut si, conjus virum (vel, e contrà) ad obtinendum divor. adulterii conscius, alium non exclusit a con. lium, propter adulterium ; si pars rea, in hoc sortio maritali, vel exclusom, admisit ; Sancasu, allegaverit et probaverit, partem agen. chez de Divortio, lib. 10 ; Disp. 5. tem, ante hanc litem institutam, habuisse no. (S) Best v. Best, 1 Addams, 413; Savile's titiam, saltem probabilem, criminis commissi case, cited ibid. note. See 4 Ves. 202. et libellati, et tamen postea carnale commer. (g) Westmeath v. Westmeath, 2 Hagg. cium cum parte rea habuisse ; pars agens Eccl. R. 113, Suppl. non obtinebit sententiam divortii ; quia in (h) Dunn v. Dunn, 2 Phill R. 411. hoc, dicitur partem agentem banc injuriam (i) Durant v. Durant, 1 Hagg. Ec. R. (id est, crimen objectum) remisisse et condo 761 ; D'Aguilar v. D’Aguilar, ibid. 781; nässe; Oughton, tit. 214, pl. 2.
Ferrers v. Ferrers, 1 Hagg. Cons. R. 130.
the husband's future amendment, on his again committing adultery the previous injury revives.(k) In a suit for divorce, on account of the husband's adultery after a condonation of former adulteries, there must be, in order to establish condonation of subsequent adultery as a bar to the wife's remedy, evidence that she was aware of this renewed misconduct ; nor can such knowledge be inferred from slight facts and from cohabitation, but it must be clearly and distinctly proved.(1) Condonation being merely retrospective, if the offence forgiven is afterwards renewed, the party has a right to revert to former facts, if brought in conjunction with later.(m) Circumstances may take off the effect of condonation which would not support an original cause. Acts of cruelty revive adultery, though they would not support an original suit for it.(n)
In order to found a legal condonation as a bar to separation for adultery, there must be complete knowledge of all the adulterous connection, and a condonation subsequent to it.(o)
A lunatic, on recovering possession of his senses, may condone adultery committed during his lunacy.(p)
The wife having committed adultery on the first of three successive nights, and the husband aware and having full knowledge of this, [ *447 ]
sleeping with her on the second, condones *thereby the
previous adultery, and cannot take advantage of further adultery on the third night.(9)
Difference between Condonation on the part of the Husband and Wife.)-Condonation may be express or implied; as by the husband cohabiting with a delinquent wife : for it is to be presuined he would not take her to his bed again unless he had forgiven her; but the effect of cohabitation is justly held less stringent on the wife; she is more sub potestate, more inops consilii; she may entertain more hopes of the recovery and reform of her husband; her honour is less injured and is more easily healed. It would be hard if condonation by implication was held a strict bar against the wife. It is not improper she should for a time show a patient forbearance; she may find a difficulty either in quitting his house or withdrawing from his bed. The husband, on the other hand, cannot be compelled to the bed of his wife; a woman may submit to necessity. It is too hard to term sub. mission mere hypocrisy. It may be a weakness pardonable in many circumstances.(r) To avoid condonation the husband is bound to take prompt notice of the infidelity of his wife, and is liable to have his neglect of so doing urged against him, when afterwards seeking his legal remedy; but it is not invariably expected that he should plead the period when the charge first came to his knowledge; it may be prudent and expedient to do so, but it is not absolutely necessary: something must be allowed to convenience.(s) Condonation with
(k) 1 Hagg. Eccl. R. 745.
351 ; Bramwell v. Bramwell, 3 Hagg. Eccl. (1) Durant v. Durant, 1 Hagg. Eccl. R. R. 629. 733, Suppl.
(p) Parnell v. Parnell, 2 Phill. R. 160. (m) Ferrers v. Ferrers, 1 Hagg. Eccl. R. (9) Timmings v. Timmings, 3 Hagg. Eccl. 781.
R. 83. (n) D’Aguilar v. D’Aguilar, 1 Hagg. (r) Beeby v. Beeby, 1 Hagg. Eccl. R. 793, Eccl. R. 782. Sce ante, pp. 435, 436. 794. See Ferrers v. Ferrers, ibid. 781*, a.
(0) Durant v. Durant, 1 Hagg. Eccl. R. (8) 2 Hagg. Cons. R. 279, 313. 733; Turton v. Turton, 3 Hagg. Eccl. R.
respect to wonen is held not to bear so strictly; but a woman would
[ *448 ] It is not necessary for the wife to withdraw from cohabitation on the first or second instance of the husband's misconduct. It is legal and meritorious to be patient as long as possible. Forbearance does not weaken her title to relief; for it is not improper she should for a time entertain hopes of her husband's reform, especially where there is a large fainily.(u) Condonation is not presumed as a bar so readily against the wife as the husband.()
Presumption from Cohabitation.]—The general presumption is, that a husband and wife living in the same house live on terms of matrimonial cohabitation; but particular circumstances may repel that presumption.(y) Where the husband's conduct has been very gross, and the parties have separate beds, there must, in order to found condonation on the wife's part, be something of matrimonial intercourse presumed; it does not rest merely on the wife's not withdrawing herself, for the court does not hold condonation so strongly against the wife, from whom it looks for long suffering and patience not expected nor tolerated in the husband.(z) Condonation therefore will not so soon bar a wife as a husband of the remedy of divorce.(a) The wife's unwilling acquiescence in a return to live in the same house, but without connubial cohabitation, does not amount to a complete forgiveness.(6) The mode in which, after a separation, a return to cohabitation was eflected is material, to show whether there was or was not condonation. On the execution of articles of separation, not followed by matrimonial intercourse, the wife's reluctant assent to the husband having a bed-room in her house at the earnest entreaty of him and of mutual friends, and on his declaring “ that he should be merely under the *roof by sufferance," is no continuation of a former condonation.(c)
[ *449 ] Pleading Condonation.)-Condonation being a plea in bar, ought in strictness to be pleaded, that there may be an opportunity afforded of contradicting it, because it is not incumbent upon the complaining party to prove that there was no condonation.(d) At the same time ihe couri is not precluded from noticing it, to this extent at least, that
(1) Kirkwall v. Kirkwall, 2 Hagg. Cons. (a) Walker v. Walker, 2 Phil. R. 156. R. 279; D’Aguilar v. D'Aguilar, 1 Hagg. (6) D'Aguilar v. D'Aguilar, 1 Hagg. Eccl. R. 786.
Eccl. R. 782*. (u) Durant v. Durant, 1 Hagg. Eccl. R. (c) Westmeath v. Westmeath, 2 Hagg. 768. 752; Beeby v. Beeby, ibid. 793; pust, Eccl
. R. App. 118. Pp. 453, 454.
(d) Elwes v. Elwes, 1 Hagg. Cons. R. (*) Durant v. Durant, 1 Hagg. Eccl. R. 292; Williams v. Williams, 3 Hagg. Eccl. 752, Suppl. See 1 Hagg. Cons. R. 278. R. 84; Durant v. Durant, 1 Hagg. Eccl. R.
Beeby v. Beeby, 1 Hagg. Eccl. R. 796. 733. 751. (z) Dance v. Dance, I Hagg. Eccl. R. 794.
if the fact appeared clearly and distinctly upon the depositions that there had been cohabitation subsequent to the knowledge and detection of the guilt, it might ex officio call upon the husband to disprove it.(e) Condonation not pleaded can only avail as a bar so far as it is fully established by evidence.($) But it seems, that unless condonation be admitted by the adverse case, that it must be pleaded to estop the party.(g)
3. OF CONNIVANCE.
Connivance and collusion destroy all claim to remedy by way of divorce, and is founded on the obvious principle, that no man has a right to ask for relief from a court of justice for an injury which he was chiefly instrumental in effecting himself. Volenti non fit injuria.(h) Condonation and connivance are essentially different in their nature, though either may have the same legal consequence. Condonation may take place, without imputing either in the case of a wife or of a husband the slightest degree of blame, especially in the case of a wife, whose conduct might be more meritorious from her forgiveness of injury. But connivance necessarily involves criminality on the part of the individual who connives, and therefore the evidence to establish it should be more grave and conclusive.(á)
*Collusion may exist without connivance, but conniv. [ *450 ]
ance is generally collusion for a particular purpose.(j) The law requires that there should be no co-operation between the parties as to the commission of an act of adultery, and will not grant a remedy where the adultery is committed with the view of afterwards obtaining a separation.(k)
In several cases ihe wife has been dismissed on that ground, although the adultery was fully proved, where the corrupt connivance of the husband was fully established.(l)
The law imposes upon the husband the obligation of cautiously protecting and guarding his wife from all associations that might expose her purity to hazard; or, by lowering her standard of female virtue, prepare
for the inroads of the seducer. The court maintains the necessity on the part of the husband of jealously watching over the society, conduct and habits of his wife, in order to prevent irreparable injury to the great bonds of domestic happiness and peace.(m)
This principle is very clearly established; but what degree of neglect, however culpable, short of an actual and voluntary exposure of the wife to the seduction of an adulterer, would be sufficient, in order to bar a suit for divorce by reason of adultery, is no where laid down, at least with that distinctness and precision, which would fur
(e) Elwes v. Elwes, 1 Hagg. Cons. R. 292. (i) Turton v. Turton, 3 Hagg. Eccl. R. (f) Beeby v. Beeby, 1 Hagg. Eccl. R.795. 350. (8) Durant v. Durant, 1 Hagg. Eccl. R. (;) See ante, p. 415. 751, Suppl.
(k) Crewe v. Crewe, 3 Hagg. Eccl. R. 130. (k) Forster v. Forster, 1 Hagg. Cons. R. (1) Timmings v. Timmings, 3 Hagg. Eccl. 144; Harris v. Harris, 2 Hagg. Eccl. R. R. 76; Lovering v. Lovering, Ib. 85. 415; Rogers v. Rogers, 3 Hagg. Eccl. R. (m) 2 Hagg. Eccl. R. 414. 58; Reeves v. Reeves, 2 Phill. R. 125.
nish a safe guide for the court to act upon. Although no case of this
[ *451 ] duced his wife.(n)
Husband's Conduct must be free from Imputation.]—The ecclesiastical court requires that a man shall come with pure hands himself, and shall have exacted a due purity on the part of his wife ; and if he has relaxed with one man, he has no right to complain of another. Therefore, where the wife made no defence to a suit for divorce by reason of her adultery, the court dismissed the suit on the ground that the husband having connived at the wife's adultery with A., could not complain of an act of adultery nearly contemporary with B.(0)
Great facility in condonation of adultery with A., taking no notice of adultery with B., (of which the husband could not be ignorant,) conduct amounting to an invitation to adultery with C., not merely giving free scope to the wife's licentiousness, in order to obtain conclusive evidence of guilt, and matrimonial cohabitation, after being in possession of full legal proof of such adultery, are criminal connivance and collusion, which will bar the husband of legal relief on account of his wife's adultery, although fully proved. (p) However culpable the wife may be, yet if the husband has been negligent and suffered her to form a connection and live on terms of cohabitation with another man, the court will not grant a separation. The adultery of the wise being proved, but she having, without her husband, resided in a gentleman's house, (of which she was treated as the mistress, and where she was delivered of three children,) without the husband sufficiently accounting for his absence, or providing for her, or interfering with such residence, the court dismissed her, on the ground that the husband by such conduct had consented to the consection and adultery.(9)
Mere imprudence and error of judgment are not connivance; and in determining whether the husband's behaviour has barred him from relief on proof of his wife's adultery, the *honesty of his intentions, not the wisdoin of his conduct, is to be con
[ *452 ] sidered.(r)
A husband is not barred by a mere permission of opportunity for
(n) Harris v. Harris, 2 Hagg. Eccl. R. R. 76. 415.
19) Michelson v. Michelson, 3 Hagg. Eccl. (0) Lodering v. Lovering, 3 Hagg. Eccl. R. 147.
(r) Hoor v. Hoar, 3 Hagg. Eccl. R. 137. (D) Timmings r. Timmings, 3 Hagg. Ecl. August, 1841.-W