Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1922-03-22

% him. He claims that otherwise
unbridled license would be given 10
the wife. without the right in the
husband 10 secure divorce therefor.
The authorities on this point are
not in agreement, due in great part
10 the existence or non-e1istence of
statute on the point, and to the
terms Of the statute if one exists.
In England. under the Matrimonial
Causes Act OF 1857. Stat. 90 and p,
Vet. CHI IS. sec. s.. the Court is vest
ID with discretion in such cases and
as general rule, though with ex-
ptiors in special instances, have
refused TO grant a divorce TO one
Who has been guilty Of adultery
though with conformation. Story Y.
Story. L. r. y, Prob. Div. 1876:
Cumming Y. Cumming, l35 Mass.
al 39o. md cases cited.
IN New York the statute in effect
in IS47 provided that condoncd act
OF adultery on the part Of the libel
ant husband would not bar his suit,
and the Court therefore so held IN
Morrell Y. Morrell. l Barb. 318.
Massachusetts, by Chapter 50 OF
the Public Laws Of 1885, contained
the same provision that now exists
. in Maine. But at some subsequent
3 time that clause has been repealed
/ and no statutory inhibition is now in
| force in that State. Therefore the
I Massachusetts Court has the power
/ to hold that a condoncd act of adul-
/ tory on the part of the lihelant would
3 ~ wi,
4 Cumming. l35 Mass. 1856; Pratt Y.
/ Pratt, 157 Mass, SOB.
4 New Hampshire. like Massachu-
sets, has no prohibitive statute. and
I the Court there is not forbidden to
act. Nasten Y. Ma5ten. Is y. H. 1872
i The preceding cases ale therefore
to be distinguished from the one un-
+ der consideration and are not pre-
( cedents.
! In New Jersey. where a statute ex-
( lists similar TO that in Maine, the
Court has construed the words
guilty of adultery to mean a guilt
or offense emitting the injured party
to a divorce under the divorce act,
and therefore TO mean an uncon
doncd act of adultery. Storms v.
Storms, II y. J. I;q. $50. g. At 700
SO in PENNSYLVANIA. Talloy V. Talley
ol5 Penn. PSI 81 AZ. 523.
/ On tic other hand. in Illinois the
! Court have held that a statute like
ours is unambiguous and means pre-
cisely what il says, and that if both
parties have been guilty of adultery,
even though guilt on the part Of one
I has been COndoncd, no divorce shall
be granted 10 either Decker Y.
Decker, 1913 III. 2S5; 55 L. r. \. 697.
The reasoning Of the Court was as
follows:
! If, in divorce proceeding, whore
/ tho complaining husband or wife
/ seeks the dissolution of the marriage
tic on the ground his or hcr consort
has been guilty Of adultery. it is dis
closed to the chancellor that the COM
painant has been guilty OF the same
Violation Of the marriage obligation,
+ the chancellor, as tho II preventative
/ Of the public interest and the welfare
and purity Of society. must, in obcdi-
encc to the command Of said sec. 10
of the divorce act, refuse to grant
decree OF divorce. In this respect
sec. 10 is u declaration Of a fixed pub
lie policy, that the benefit Of the stat
utory provisions authorizing DEGREES
I Of divorce shall not be extended ~
( the courts to cases where both the
I husband and wife have committed
! the offcnsc Of adultery, but that those
who had each so offended against
the marriage relation should be dis
missed from the court, and loft to
themselves as husband and wife"
In my opinion, the reasoning Of tho
Illinois Court is sound. Marriage is
indeed a civil contract but at the
same time the State IS also an in
tcrestcd party The contract cannot
be entered into except as the statutes
may provide. During covcrture the
legal rights Of husband and wife are
regulated by statute, and the mar
Rage tic cannot be severed, aside
from death. except as provided by
statute. The contract is created, con-
tinucd and ended under the rcgula-
ton Of tho state. always having the
public good in view.
The provision in this State abso-
lutciy fOrbidding the granting of
divorce when both parties have been
guilty Of adultery is coupled with the
clause fOrbidding divorce in cases Of
collision. The words have been
guilty" are broad in their scope and
mean have been guilty at any time.
In terms the inhibition is absolute
and unqualified. 1t was inserted in
the original act regulating divorces
when Maine became an independent
State. II. s. 1921, oh. II, sec. f. 1t
has been reCnactcd in every revision
from that time to the present and in
substantially the same language, If
it should be interpreted as claimed,
there was no reason for its enactment
at all. The Court would have no
greater nor less power after its pas
sage than before. Moreover. if the
intention was that a condoned adul-
tory was not to be a bar to main
tanning a libel, the Legislature could
easily have so expressed it.
1t may we'll be conceived that as
matter Of public policy the State
While authorizing a divorce for many
causes and under many conditions,
has also placed limit to the circum-
stances under which il will lend its
aid and distinctly announces that
when certain facts appear the law
! will not step in 20 dissolve the con-
I tract, but Will leave the parties where
/ they have placed themselves. 1t docx
this in the interest Of public welfare
and good morals.
therefore hold as matter Of
statutory law on this branch Of the
case that even if the husbands guilt
, had been condoned by the wife, since