or trustee, since the sentence of separation, or to which she is possessed or entitled for an estate in remainder or reversion at the date of the decree; and such property may be disposed of by her in all respects as a feme sole, and on her decease the same will, in case she dies intestate, go as the same would have gone if her husband had been then dead; provided, that if she again cohabits with her husband, all such property as she may be entitled to when such cohabitation takes place will be held to her separate use, subject, however, to any agreement in writing made between herself and her husband whilst separate. She is also, whilst so separated, considered as a feme sole for the purposes of contract, and wrongs and injuries, and suing and being sued in any civil proceeding; and her husband is not liable in respect of any engagement or contract she may have entered into, or for any wrongful act or omission by her, or for any costs she may incur as plaintiff or defendant; but where upon any such judicial separation alimony has been decreed or ordered to be paid to the wife, and the same has not been duly paid by the husband, he will be liable for necessaries supplied for her use. The only purpose for which apparently she retains her status as wife is in the exercise of any joint power given to herself and her husband, which she is not prevented, by the operation of the decree, from joining with him in giving effect to (h). [*402] *Such decree of separation may, however, at any time be reversed upon the ground that it was obtained in the absence of the party affected by it, and upon its being further shown, where desertion was the ground of the decree, that there was reasonable ground for the desertion alleged. Until such reversal, however, the decree is valid and effectual for the protection of any person or corporation who shall deal with the wife; and no discharge, variation, or reversal of the decree will prejudice or affect any rights or remedies which any person would have had in case the same had not been so reversed, varied, or discharged in respect of any debts, contracts, or acts of the wife incurred, entered into, or done between the times of the making such decree and its discharge, variation or reversal (i). And all persons and corporations who, relying on such decree, make payments to, or deal with, the wife, are protected by such order, though it be at the time actually reversed or varied, unless at the time of such payment or other dealing with the wife such persons or corporations had notice of the reversal or variation of the decree (k). Incident to the granting of a decree of judicial separation is the power of the court to make orders for the future maintenance of the wife and for the Maintenance of custody and maintenance of the children. The ecclesiastical courts acting upon the principle that all property is prima facie vested in the husband, and that the wife is entitled to be supported according to the means of her husband during the pendency of the suit, and treating her during such suit as an innocent party, whether prosecuting or defending, allotted her alimony pendente lite, varying very considerably in amount according to the position of the parties and the circumstances of the case. This equitable principle has been adopted by the court for divorce, and with a view to the convenience of having the practice in these cases as far as possible settled, it is the usual, but not inflexible rule, to allow the wife, by the wife. way of alimony pendente lite, one-fifth of the joint incomes of the [*408] husband and wife. On the termination of the suit, if in favour of the wife, the practice usually is to allot her from a quarter to one-third of the joint incomes by way of permanent alimony, the husband being at liberty, in the event of his income diminishing, to move for a decrease of the allotment, and the wife, on the other hand, being at liberty, if necessary, to move for a proportionate increase. In every case, also, in which the court makes any decree or order for alimony, it may direct the same to be paid either to the wife herself or to any trustee on her behalf, to be approved by the court, and may impose any terms or restrictions which it may deem expedient, and may from time to time appoint a new trustee, if for any reason it appears to the court expedient so to do (1). the children. In regard to the children of the marriage the court has vested in it by the 35th section of the 20 & 21 Vict. c. 85, a power exceeding that exercised by, the courts of law or equity, for by it the court is empowered to Custody and maintenance of make such interim and final orders with respect to the custody, maintenance, and education of the children of the marriage as it may deem just and proper, and may, if it thinks fit, direct proceedings to be taken for placing the children under the protection of the court of chancery. In carrying out the provisions of this section the court recognises the common law right of the father to the custody of his children, and, unless for very good reasons, does not interfere with such custody. During the pendency of the suit, both parties are usually allowed reasonable access to the children, in whose custody soever they may be; and in the result their custody, if prayed for, is usually committed to the party who is found to be innocent, with such orders for the other party to have access to them as it may consider fair to the parents and not prejudicial to the interests of the children them[* 404] selves. In the case of a mother who is proved guilty of adultery, she is usually debarred from such access, though it has not been the practice to treat the offending father with the same rigour. And where it has appeared that the party succeeding in the suit is not the person to whom it would be for the interests of the children themselves that their custody should be entrusted, some third persons willing to undertake their care and approved of by the court have been appointed their guardians, and an allowance made to them for their support (m). The most important function of the court is, however, in the granting of decrees of dissolution of marriage. And for this purpose any husband may Dissolution of present a petition to the court, praying that his marriage may be marriage. dissolved, on the ground that his wife has since the celebration. thereof been guilty of adultery; and any wife may present a petition praying that her marriage may be dissolved, on the ground that since the celebration thereof her husband has been guilty of incestuous adultery, or of bigamy with adultery, or of rape, or of sodomy or bestiality, or of adultery coupled with such cruelty as without adultery would have entitled her to a divorce à mensd et thoro, or of adultery coupled with desertion without reasonable excuse, for two years or upwards; incestuous adultery being taken to mean adultery committed by a husband with a woman with whom if his wife were dead he could () 20 & 21 Vict. c. 85, s. 24. (m) Chetwynd v. Chetwynd, 1 L. R. P. & M. 39. not lawfully contract marriage by reason of her being within the prohibited degrees of consanguinity or affinity, including, therefore, adultery with the wife's sister; and bigamy being taken to mean marriage of any person, being married, to any other person during the life of the former husband or wife, whether the second marriage shall have taken place within the dominions of Her Majesty or elsewhere (n). *Upon any such petition it becomes the duty of the court, follow[* 405] ing in this respect the practice of the houses of parliament, to satisfy itself, so far as it reasonably can, not only as to the facts alleged, but also whether or no the petitioner has been in any manner accessory to or conniving at the adultery, or has condoned the same, and also to inquire into any countercharge which may be made against the petitioner (0). In case the court, on the evidence in relation to any such petition, is not satisfied that the alleged adultery has been committed, or finds that the petitioner has during the marriage been accessory to or conniving at the adultery of the other party to the marriage, or has condoned the adultery complained of, or that the petition is presented or prosecuted in collusion with either of the respondents, then and in any of the said cases the court is bound to dismiss the petition (p). If, however, it is satisfied on the evidence that the case of the petitioner has been proved, and does not find that the petitioner has been in any manner accessory to or conniving at the adultery of the other party to the marriage, or has condoned the adultery complained of, or that the petition is presented or prosecuted in collusion with either of the respondents, then the court is bound to pronounce a decree declaring such marriage to be dissolved. It is, however, expressly provided that the court shall not be bound to pronounce such decree if it shall find that the petitioner has during the marriage been guilty of adultery, or if the petitioner shall, in the opinion of the court, have been guilty of unreasonable delay in presenting or prosecuting such petition, or of cruelty towards the other party to the marriage, or of having deserted or wilfully separated himself or herself from the other party before the adultery complained of, and without reasonable excuse, or of such*wilful neglect or mis- [* 406 ] conduct as has conduced to the adultery (9). With regard, therefore, to the position of a husband, he is entitled to have his marriage dissolved on account of the adultery of his wife, provided his own conduct has not been such as to bring him within the prohibitory clauses of the Act. With regard to the wife's position, it is only necessary to remark that the bigamy with adultery contemplated by the statute has been construed to mean adultery committed with the person with whom the bigamy has been committed (r). It will be observed that there are two distinct classes of bars to the applicant's right to have a dissolution of marriage, of which one class are peremptory bars, binding the court to dismiss the petition, and the other addressed to the discretion of the court, to be exercised according to the circumstances of each particular case. Thus, according to the 30th section, a failure of Bars to the suit. (n) 20 & 21 Vict. c. 85, s. 27. (0) 20 & 21 Vict. c. 85, s. 29. (p) Ib. s. 30. VOL. II. — 37 (g) 20 & 21 Vict. c. 85, s. 31. proof, the petioner's connivance at, or condonation of, the adultery, or the presenting or prosecuting of the suit in collusion with either of the other parties to it, compel the court to dismiss the suit; while under the 31st section, the adultery of the petitioner, or his or her unreasonable delay in presenting or prosecuting the petition, or cruelty, desertion, or wilful neglect and misconduct conducing to the adultery complained of, are only so far bars to the suit that the court is not bound to pronounce a decree of dissolution if it finds any of such offences to be established. The discretion, however, which is thus vested in the court is a judicial and not an arbitrary discretion, and as such, certain rules have been laid down by the judges of the court for their guidance in the exercise of this discretion. Thus, as to the adultery of the petitioner, some special [* 407] circumstances must appear so as to bring it within the discretionary * clause, either that it was committed in ignorance of the existence of the respondent, or where the petitioner bond fide though wrongfully believed that his marriage had been dissolved, or where the adultery complained of had occurred many years ago, and was known to and condoned by the wife (8). As to the unreasonable delay, it must be of such a nature as to make it appear that the petitioner was insensible to the injury of which he complains (t). And misconduct conducing to the adultery must amount to a breach of some marital duty, and be of such a character that it might fairly be comtemplated by the petitioner as likely to lead to the commission of adultery (u). Alleged adulterer a party to the suit. Before the passing of the 20 & 21 Vict. c. 85, the alleged adulterer was no party to the suit in the ecclesiastical court, nor was he represented before the parliamentary committee who took the Divorce Bill into their consideration; now, however, by the 28th section of the Act, the petitioner is bound to make the alleged adulterer a co-respondent to the petition, unless, upon special grounds to be allowed by the court, he is excused from doing so, and being thus a party to the suit, the court has the power to make such order upon him as to payment of the whole or any part of the costs of the proceedings as it may think fit (x). The court has power also, in the case of a wife's petition, to make the woman with whom the husband is alleged to have committed adultery a party to the suit, with a view no doubt under certain circumstances of condemning her in costs. Decree absolute. The decree in the first instance is a decrce nisi, and not made absolute for a period of six months from the date thereof, within which time the queen's proctor, on the direction of the attorney-general, by virtue of his office, * or any other member of the public, may intervene in [* 408] the suit and show cause why the decree should not be made absolute by reason of the same having been obtained by collusion or by reason of material facts not brought before the court; and, on cause being so shown, the court will deal with the case by making the decree absolute, or by reversing the decree nisi, or by requiring further inquiry, or otherwise as justice may require; and at any time during the progress of the cause or before the decree is made absolute any person may give information to the queen's proctor of any matter material to the due consideration of the case, who may thereupon take such steps as the attorney-general may deem necessary or (8) Morgan v. M. and Porter, 1 L. R. P. & M. 644. (t) Pellew v. Pellew and Berkeley, 29 L. J. P. & M. 44. (u) Cunnington v. Cunnington and Noble, 28 L. J. P. & M. 101. (x) Ib. sect. 51. expedient; and if from any such information or otherwise the queen's proctor suspects that any parties to the suit are or have been acting in collusion for the purpose of obtaining a divorce contrary to the justice of the case, he may, under the direction of the attorney-general, and by leave of the court, intervene in the suit, alleging such case of collusion, and retain counsel and subpoena witnesses to prove it; and the court may order the costs of such counsel and witnesses, and otherwise, arising from such intervention, to be paid by the parties or such of them as it shall see fit, including a wife, if she have separate property (y). The right, however, to make the parties to a suit pay costs to the crown when the petition is dismissed is confined to cases where the queen's proctor has alleged and proved a case of collusion. In all other cases where the queen's proctor intervenes, the recognised rule prevails, that the crown neither pays nor receives costs (z). By the 20 & 21 Vict. c. 85, a dissolution of the marriage could only be pronounced by the full court of divorce, consisting of three judges of the court, the judge ordinary being one (a); now, however, the judge ordinary may * sit alone to hear and determine all matters arising in the court, [*409] and may exercise all powers and authority whatever which might previously have been heard and determined and exercised respectively by the full court or by three or more judges of the said court, the judge ordinary being one, or where the judge ordinary deems it expedient, in relation to any matter which he might hear and determine alone by virtue of this act, he may have the assistance of one other judge of the court, and sit and act with such one other judge accordingly, and, in conjunction with such other judge, exercise all the jurisdiction, powers, and authority of the court (b). The judge ordinary can thus hear petitions for dissolution or for nullity of marriage, arguments on bills of exceptions, special verdicts, and special cases. He can also try questions under the Legitimacy Declaration Act, 1858, and he may grant or refuse a rule for a new trial, such order, however, being subject to an appeal to the full court (c). the wife. On a decree for a dissolution of marriage being pronounced at the suit either of the husband or the wife, the court may order the husband to secure to the Maintenance of wife such gross sum of money, or such annual sum of money for any term not exceeding her own life, as, having regard to her fortune (if any), to the ability of the husband, and to the conduct of the parties, it shall deem reasonable, and for that purpose may refer it to any one of the conveyancing counsel of the court of chancery to settle and approve of a proper deed or instrument to be executed by all necessary parties; and may suspend the pronouncing of its decree until such deed shall have been duly executed (d); and in cases where a husband has no property on which a gross sum or an annual payment could be secured, it may make an order upon the husband for weekly or monthly payments, with power from time to [* 410] time to discharge, modify, or suspend the order as it may think fit (e). * On a decree at the suit of the husband, where the wife is entitled to property either in possession or reversion, the court may order such settlement as it thinks reasonable to be made of such property, or any part thereof, for the 89. (y) 23 & 24 Vict. c. 144. (2) Lautour v. The Q. Pr., 33 L. J. P. & M. (a) Sect. 10. (b) 23 & 24 Vict. c. 144, s. 1. (d) 20 & 21 Vict. c. 85, s. 32. |