Custody of children. Effect of judgment of nullity. SEC. 85. The Court must award the custody of the children of a marriage annulled on the ground of fraud or force, to the innocent parent, and may also provide for their education and maintenance out of the property of the guilty party. N. Y. C. C., Sec. 57. SEC. 86. A judgment of nullity of marriage rendered is conclusive only as against the parties to the action and those claiming under them. N. Y. C. C., Sec. 58. Marriage, how dissolved. Divorce, what ARTICLE II. DISSOLUTION OF MARRIAGE. SECTION 90. Marriage, how dissolved. 91. Divorce, what. 92. Causes for divorce. 93. Adultery defined. 94. Extreme cruelty, what. 95. Desertion, what. 96. Desertion, how manifested. 97. In case of stratagem or fraud, who commits desertion. 98. In case of cruelty, where one party leaves the other, who com mits desertion. 99. Separation by consent not desertion. 100. Intent not to be inferred. 101. Separation and intent to desert not always coincident. 102. Consent to separate revocable. 103. Desertion, how cured. Effect of refusing condonation. 104. Wife must abide by husband's selection of home, or it is deser tion on her part. 105. If the place is unfit, and wife refuses to conform, it is deser tion by the husband. 106. Wilful neglect, what. 107. Habitual intemperance, what. 108. Felony, what. SEC. 90. Marriage may be dissolved 1. By the death, or sentence to imprisonment for life, of either of the parties; or, 2. By a divorce adjudged by a Court of competent jurisdiction. N. Y. C. C., Sec. 59. SEC. 91. Divorce is a judgment dissolving the mar riage and restoring the parties to the status of unmarried persons. [New section.] SEC. 92. Divorces must be granted for any of the fol- Causes for divorce. defined. SEC. 93. Adultery is the voluntary sexual intercourse Adultery of a married person with a person other than the offender's husband or wife. cruelty, what SEC. 94. Extreme cruelty is such conduct in one of Extreme the married parties as renders a continuance of the cohabitation either so dangerous to the other in fact, or attended with such reasonable apprehension in the mind of danger to the physical existence or comfort, as to demand a separation on the ground of the real physical safety of the other; or of the mental and physical capacity in the other to discharge well the duties of husband or wife. [New section.] Bish. on Mar. and Div. (4th ed.), Sec. 717; Stats. 1851, NOTE. Statutes of 1851, 186, authorizes divorce for "ex- what. SEC. 95. Wilful desertion is the voluntary separation Desertion, one year of one of the married parties from the other, or the voluntary refusal one year to renew a suspended cohabitation without justification either in the consent or the wrongful conduct of the other. The fact of separation and the intent to desert must coexist. [New section.] Bish. on Mar. and Div., I, Sec. 776; Stats. 1851, 186; Desertion, how manifested. In case of stratagem or fraud, who commits desertion. In case of cruelty, where one the other, SEC. 96. Wilful desertion may be manifested by 1. Persistent refusal to have reasonable matrimonial intercourse as husband and wife, when health or physical condition does not make such refusal reasonably necessary; or, 2. Refusal of the deserting party to dwell in the same house with the other party, when there is no just cause for such refusal; or, 3. Prolonged voluntary absence without apparent cause. [New section.] Bish. on Mar. and Div. (4th ed.), Sec. 777, and note; Morrison vs. Morrison, 20 Cal., 231. SEC. 97. NOTE.-Subd. 1 is intended to settle a question stated as doubtful in Bishop on Marriage and Divorce (4th ed.), 778-782. It reaches a class of cases not covered by the second subdivision. The term "matrimonial intercourse" is used as a more agreeable expression than "sexual intercourse," both having the same legal significance, according to authorities cited in note 1, Sec. 777, of the work above cited. Use of the word cohabited is avoided for its uncertainties. See same work. When one party is induced, by the stratagem or fraud of the other party, to leave the family dwelling place, or to be absent, and during such absence the offending party departs with intent to desert the other, it is desertion by the party committing the stratagem or fraud, and not by the other. SEC. 98. Departure or absence of one party from the party leaves family dwelling place, caused by cruelty or by threats of bodily harm from which danger would be reasonably apprehended from the other, is not desertion by the absent party, but it is desertion by the other party. who commits desertion. Separation by consent not desertion. [New section.] NOTE. This section is intended to settle a question discussed as doubtful in Bishop on Marriage and Divorce, Secs. 787, 791, 794. SEC. 99. Separation by consent, with or without the understanding that one of the parties will apply for divorce, is not desertion. [New section.] Intent not to SEC. 100. be inferred. Bish. on Mar. and Div. (4th ed.), Sec. 783. Intent to desert cannot be inferred from the naked fact of living apart, but such fact, accompanied by other circumstances or prolonged voluntary absence with- SEC. 101. The separation and intent to desert are not always coincident. Temporary absence or separation, proper in itself, may be converted into desertion whenever the intent to desert is fixed during such absence or separation [New section.] Bish. on Mar. and Div., Sec. 784. SEC. 102. Consent to a separation is a revocable act, and if one of the parties afterwards, in good faith, seeks a reconciliation and restoration but the other refuses it, such refusal is desertion. [New section.] Bish. on Mar. and Div., Sec. 786. SEC. 103. If one party deserts the other, and before Desertion, the expiration of the statutory period required to make how cured. the desertion complete, truly repents, returns and offers, in good faith, to fulfil the marriage contract, and solicits. condonation, the desertion is cured. If the other party Effect of refuses such offer and condonation, it is desertion by such party from the time of refusal. [New section.] Bish. on Mar. and Div., Sec. 786; Benkert vs. Benkert, SEC. 104. The place and mode of living should be mutually agreed upon by the parties, but if they fail to agree the husband may choose any reasonable place or mode, as provided in Sec. 156, and if the wife does not conform thereto, it is desertion. [New section.] Bish. on Mar. and Div., Sec. 788; N. Y. C. C., Secs. 75, refusing condonation. If the place wife refuses it is deser is unfit, and to conform, SEC. 105. If the place or mode of living selected by the husband is unreasonable and grossly unfit, and the wife does not conform thereto, it is desertion on the part of the husband, from the time her reasonable objections husband. are made known to him. [New section.] tion by the lect, what. SEC. 106. Wilful neglect is the neglect of the husband, Wilful negfor one year, to provide for his wife the common necessaries of life, having the ability to provide them, or failing Habitual intemper. to do so by reason of his idleness, profligacy or dissipation. [New section.] Stats. 1870, 291; Washburn vs. Washburn, 9 Cal., 475. SEC. 107. Habitual intemperance is that degree of ance, what. intemperance, for one year, from the habitual use of intoxicating drinks, which disqualifies the person a great portion of the time from properly attending to business, or which would reasonably inflict a course of great mental anguish upon the innocent party. Felony, what. [New section.] Stats. 1851, 186; 1870, 291; Mahone vs. Mahone, 19 Cal., 626; Bish. on Mar. and Div. (4th ed.), Sec. 813. NOTE. The last clause of the section is new. It speaks for itself. The presence of an habitual drunkard at home, casting reproaches and indignities upon his wife, ought to be a better cause of divorce than being drunk at his place of business. SEC. 108. Felony, as a ground of divorce, is a crime for which the judgment or sentence is imprisonment in the State Prison for a period less than for life. Sentence for a life period dissolves the marriage by operation of law. [New section.] ARTICLE III. CAUSES FOR DENYING DIVORCE. SECTION 112. Divorces denied, on showing what. 113. Connivance, what. 114. Corrupt consent, how manifested. 115. Collusion, what. 116. Condonation, what. 117. Requisites to condonation. 118. Evidence of condonation. 119. Condonation, when operates to bar divorce. 120. Concealment of facts in certain case makes condonation void. 121. Condonation, how revoked. 122. Recrimination, what. 123. Condonation in a recriminatory defence a bar to such defence, when. 124. Divorces denied, when. 125. Lapse of time establishes certain presumptions. 126. Presumptions may be rebutted. 127. Limitation of time. 128. Divorces granted, when. |