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Additional

affirmative

statements required in complaint.

Divorce not to be granted by default,

etc.

SEC. 131. In addition to the allegations of the complaint required by the CODE OF CIVIL PROCEDURE, the plaintiff must affirmatively state that there has been no connivance, collusion, condonation, recrimination, limitation nor lapse of time sufficient to bar the action. These statements are presumptively true; but the contrary being proved, a decree of divorce must be denied.

NOTE. This section has been prepared on recommendation of Hon. S. H. Dwinelle, Judge of the Fifteenth District Court, to enable the Court to have a basis for denying divorce, where there is no answer filed. Both the preceding sections should be transferred to the Code of Civil Procedure before adoption by the Legislature.

SEC. 132. No divorce shall be granted upon the default of the defendant, or upon the statement, admission or uncorroborated testimony of the parties, or upon any statement or finding of fact made by a referee, but the Court must require proof of the facts alleged, which proof, if taken before a referee, must be upon written questions and answers.

"Divorces," Sec. 8; 13 Cal., 87.

ARTICLE IV.

GENERAL PROVISIONS.

SECTION 136. Relief may be adjudged in some cases, where separation denied.

137. Expense of action.

138. Orders respecting custody of children.

139. Support of wife and children on divorce or separation granted

to wife.

140. Security for maintenance and alimony.

141. Court shall resort to what, in executing certain sections.

142. If wife has sufficient for her support, Court may withhold

allowance.

143. Common and separate property may be subjected to support and educate children.

144. When wife shall support husband out of her separate prop

erty.

145. Legitimacy of issue.

146. Same.

147. Disposition of common property on divorce.

148. How disposed of when divorce rendered on adultery as a

cause.

149. Such an action subject to revision on appeal.

SEC. 136. Though judgment of divorce is denied, the Court may, in an action for divorce, provide for the main tenance of the wife and her children, or any of them, by the husband.

N. Y. C. C., Sec. 68.

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action.

SEC. 137. While an action for divorce is pending, the Expense of Court may, in its discretion, require the husband to pay as alimony any money necessary to enable the wife to support herself or her children, or to prosecute or defend the action.

N. Y. C. C., Sec. 71.

SEC. 138. In an action for divorce, the Court may, before or after judgment, give such direction for the custody, care and education of the children of the marriage as may seem necessary or proper, and may at any time vacate or modify the same.

N. Y. C. C., Sec. 72.

SEC. 139. Where a divorce is granted for an offence 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.

N. Y. C. C., Sec. 73.

SEC. 140. The Court may require the husband to give reasonable security for providing maintenance 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.

N. Y. C. C., Sec. 74.

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SEC. 141. In executing the five preceding sections the Court shall Court must resort

1. To the common property; then,

2. To the separate property of the husband.

[New section.]

SEC. 142. When the wife has either a separate estate or an interest in common property sufficient to give her

resort to what, in executing certain sections.

If wife has sufficient for her support,

Court may allowance.

withhold

Common and separate property

may be subjected to

support and educate children.

When wife

shall support

alimony or a proper support, the Court, in its discretion, may withhold any allowance to her out of the separate property of the husband.

[New section.]

SEC. 143. The common property of husband and wife, and the separate property of cach, may be subjected to the support and education of the children in such proportions as the Court deems just.

[New section.]

SEC. 144. Either without divorce or with divorce, husband out when the wife is the offending party she shall support the husband out of her separate property, when he has

of her sepa.

rate prop erty.

Legitimacy of issue.

Same.

Disposition of common

divorce.

no separate estate and when they have no common property, and when he is not able or competent, from infirmi ties, to support himself.

[New section.]

SEC. 145. When a divorce is granted for the adultery of the husband, the legitimacy of children of the mar riage, begotten of the wife before the commencement of the action, is not affected.

N. Y. C. C., Sec. 62.

SEC. 146. 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. In every such case, all children begotten before the commencement of the action are to be presumed legitimate until the contrary is shown.

N. Y. C. C., Sec. 63.

SEC. 147. In case of the dissolution of the marriage property on by decree of any Court of competent jurisdiction, the common property must be equally divided between the parties, and the Court granting the decree must make such order for the division of the common property, or the sale and equal distribution of the proceeds thereof, as the nature of the case may require.

Stats. 1850, 254, Sec. 12.

SEC. 148. When the decree of divorce is rendered on the ground of adultery or extreme cruelty, the party found guilty thereof is only entitled to such portion of the common property as the Court granting the decree may, in its discretion, from the facts of the case, deem just. Stats. 1850, 254, Sec. 12.

SEC. 119. The order for the disposition of the common property under the preceding section is subject to revision on appeal, in all respects, including the exercise of discretion by the Court below.

Stats. 1850, 254, Sec. 12.

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CHAPTER III.

HUSBAND AND WIFE.

SECTION 155. Mutual obligations of husband and wife.
156. Rights of husband, as head of family.
157. In other respects, their interests separate.
158. Husband and wife may make contracts.
159. How far may impair their legal obligations.
160. Consideration for agreement of separation.
161. May be joint tenants, etc.

162. Separate property of the wife.

163. Separate property of the husband.

164. Common property.

171. Inventory of separate property of wife.

172. Filing inventory, notice of wife's title.

173. Non-entry of property therein prima facie evidence that it is

not common property.

174. Earnings of wife not liable for debts of husband.

175. Earnings of wife, when living separate, separate property.

176. Liability for debts of wife contracted before marriage.

177. Wife's property not liable for debts of the husband, but liable

for her own debts.

178. Power of the husband over common property.

179. Courtesy and dower not allowed.

180. Neither answerable for the acts of the other.

181. Support of wife.

182. Husband not liable when abandoned by wife.

183. Rights of husband and wife governed by what.
184. Marriage settlement contracts, how executed.
185. To be acknowledged and recorded.

186. Effect of recording.

187. Minors may make marriage settlements.
188. Rights of married woman as sole trader.

Mutual obli- SEC. 155. Husband and wife contract towards each gations of

husband and other obligations of mutual respect, fidelity and support.

wife.

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In other

respects,

N. Y. C. C., Sec. 75.

SEC. 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.

SEC. 157.

husband nor

N. Y. C. C., Sec. 76.

Except as mentioned in Sec. 158, neither wife. has any interest in the property of the esta separate other, but neither can be excluded from the other's

their inter

Husband

and wife may make contracts.

How far may impair their

tions.

dwelling.

N. Y. C. C., Sec. 78.

SEC. 158. Either husband or wife may enter into any engagement or transaction with the other, or with any other person, respecting property, which either might if unmarried; subject, in transactions between themselves, to the general rules which control the actions of persons occupying confidential relations with each other, as defined by the Title on Trusts.

N. Y. C. C., Sec. 79.

SEC. 159 A husband and wife cannot, by any contract legal obliga with each other, alter their legal relations, except as to property, as provided in Sec. 158, and except that they may agree to an immediate separation, and may make provision for the support of either of them and of their children during such separation.

Considera

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SEC. 169. The mutual consent of the parties is a suffiagreement of cient consideration for such an agreement as is mentioned

tion for

separation.

in the last section.

N. Y. C. C., Sec. 81.

May be joint tenants, etc.

Separate property of the wife.

SEC. 161. A husband and wife may hold real or personal property together, jointly or in common, or as community property.

N. Y. C. C., Sec. 82.

SEC. 162. All property of the wife, owned by her before marriage, and that acquired afterwards by gift, be

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