DIVORCE, ANNULLING MARRIAGES AND ALIMONY.

The district court where either party resides, has, jurisdiction of the subject matter of this chapter. [Se]. State legislatures have power to grant divorces in all cases where such power has not been conferred on the courts of the state by some constitutional provision or legislative enactment. The legislature of this state has been deprived of the power to grant divorces for any cause by Article 3, Se, of the constitution, which provides that “no divorce shall be granted by the general assembly.” A divorce obtained from a court not having jurisdiction is absolutely void. The residence necessary to give the court jurisdiction must be permanent, or at least of a sufficient period of time to indicate an intention of continued residence and citizenship. The general rule is that the domicile of the wife and children is to be considered the same as that of the husband, but in a proceeding for divorce the law recognizes that husband and wife have separate domiciles, and a valid divorce may be granted where only one of the parties resides, but if they reside in different states, the court having jurisdiction of the party making application for the divorce may grant the decree, but it has no authority to make a decree as to the custody of the children, if they are non-residents of the state where the decree of divorce is rendered. A decree of divorce can always be set aside for fraud in obtaining it.

When the application for divorce is against a party not residing in this state, the petition, in addition to the facts on account of which the applicant claims the relief sought, must state that such applicant has been for the last year a resident of the state, stating the town and county in which he has resided, and the length of his residence therein, after deducting all absences from the state; that he is now a resident thereof; that such residence has been in good faith and not for the purpose of obtaining a divorce only; and it must in all cases state that the application is made in good faith and for the purpose set forth in the petition. [Se.]

All the allegations of the petition must be verified by oath and proved by competent evidence. No divorce shall be granted on the evidence of the applicant alone, and all such actions shall be heard in open court on the testimony of witnesses or depositions. [Se.] No divorce can be granted by consent of parties unless grounds therefor can be shown by competent evidence, and if collusion or conrivance on the part of the defendant can be shown, such fact will be a valid defense.

Divorce from the bonds of matrimony may be decreed against the husband for the following causes:

1. When he has committed adultery subsequent to the marriage;

2. When he wilfully deserts his wife and absents himself without a reasonable cause for the space of two years;

3. When he is convicted of felony after the marriage;

4. When, after marriage, he becomes addicted to habitual drunkenness;

5. When he is guilty of such inhuman treatment as to endanger the life of his wife. [Se.]

A previous law of our state provided that when it was fully apparent to the court that the parties could not live in peace and happiness together, and that their welfare required a separation, a decree of divorce might be granted, but no valid divorce can now be granted for any other cause than for some one of those enumerated above; and this is true, although it may plainly appear that a party has wholly disregarded his marriage vows and obligations in various other ways.

[Adultery.]

As the direct fact of adultery can seldom be proved, when a divorce is asked on this ground, it will be sufficient if the fact can be shown by circumstances which would be inconsistent with any rational theory of innocence, and such as would lead the guarded discretion of a just mind to the conclusion of the truth of the facts. The disposition of the parties may be shown, with the fact of their being together and having an opportunity to commit the act.

A reasonable cause for desertion must be some wrongful conduct on the part of the other party, and must be of such a serious nature that it would prima facie entitle the party deserting to a divorce. If husband and wife mutually agree to separate, such separation will not constitute ground for divorce, unless the party applying for the divorce, in good faith expresses a desire to live with the other. Where the wife is compelled to leave her husband on account of inhuman treatment, such as would entitle her to a divorce, such desertion cannot be made the basis of proceedings for divorce by the husband, for in such case he and not she is guilty of desertion, and this may be alleged by the wife, with other causes, in seeking a divorce. A wife may be justified in leaving her husband because of his failure to protect her from insult and abuse, and when she leaves him for this cause, her desertion will not be grounds for divorce.

A conviction for felony which may be subject to reversal does not constitute ground for divorce, but such conviction must be final and absolute.

If a woman marries a man knowing him to be intemperate, though she does so in the hope of reforming him, the courts will not interfere after marriage to grant her relief from the result of her misplaced confidence, but where the habit has been acquired subsequent to the marriage and has become fixed and the husband is habitually drunk, though not in such condition during business hours, it is such habitual drunkenness as will entitle the wife to a divorce.

Cruel and inhuman treatment, to constitute ground for divorce must be of such a nature as to endanger life, but need not necessarily consist of physical violence. Even where no single act or number of acts can be shown which might cause reasonable apprehension of harm to life, if the ill treatment as an entirety is of a nature to affect the mind and undermine health to such a degree that the life will be ultimately endangered, it will entitle the injured party to a divorce. Ungovernable outbursts of rage, the use of profane and obscene language, applying insulting epithets to the wife in the presence of others, acts of cruelty and neglect in sickness, coupled with failure to provide suitable food and clothing, have all been held to be such cruelty, which, if long continued, would result in danger to life. Condonation is always a valid defense in proceedings for divorce. If the wrong is once forgiven, it cannot afterwards be made a ground for divorce, but the mere fact that a wife continues to live in the same house with her husband, and does the household work, is not such condonation as will defeat her action.

The husband may obtain a divorce from his wife for like causes, and also when the wife at the time of the marriage was pregnant by another than her husband, unless such husband had an illegitimate child or children then living, which was unknown to the wife at the time of the marriage. [Se.] In many other states, divorce will be granted to the husband, for the cause here named, but in no other state is it provided that in such case, a husband who had an illegitimate child at the time of the marriage, unknown to the wife, cannot take advantage of this fact to obtain a divorce.

The defendant may obtain a divorce for the causes as above stated, by filing a cross petition. [Se.]

The court may order either party to pay the clerk a sum of money for the separate support and maintenance of the adverse party and the children, and to enable such party to prosecute or defend the action. [Se.] In applying for an order granting temporary alimony it is not necessary to show that the party making the application is entitled to a divorce. It is sufficient if it appears that such party is without means of support and unable to prosecute the action without such allowance. The fact of marriage must be either admitted or proved. The court may allow attorney’s fees in proceedings for divorce and alimony, but the party against whom the action is brought, is not liable, if the other party is unsuccessful. Where the applicant for divorce is ordered to pay a certain sum of money to enable the defendant to defend, it he fails to obey this order, the action may be dismissed.

If it appears that the father is an unfit person to have the custody of the children, pending a proceeding for divorce, the court has power to provide for their custody and maintenance as may be for the best interest of the children.

A judgment or order for temporary alimony is a lien upon the property of the person against whom the order is directed, and such property may be levied upon by attachment and held to satisfy the decree of the court. [Se.] Attachment may be allowed without bond and it may be granted in a suit to annul an illegal marriage as well as in one for divorce. It may be levied on the homestead as well as other property. The disposition of property by the defendant may also be restrained by injunction.

In making such orders, the court or judge shall take into consideration the age, condition, sex and pecuniary condition of the parties, and such other matters as are deemed pertinent, which may be shown by affidavits in addition to the pleadings or otherwise, as the court or judge may direct. [Se.]

When a divorce is decreed, the court may make such order in relation to the children, property, parties, and the maintenance of the parties as shall be right and proper. Subsequent changes may be made by the court, in these respects when circumstances render them expedient. [Se.] In granting a divorce, full power is given the court over the questions of permanent alimony and custody of children, and the amount of alimony will be determined by a careful consideration of the circumstances of the parties. The allowance is usually for a certain sum of money, but the court may set apart a specific portion of property as alimony. Only in rare cases and under peculiar circumstances will alimony be granted to the party in fault. A judgment for alimony may be made a lien upon specific property, and the court may declare it a lien on the homestead. The court granting a divorce and alimony retains jurisdiction of the same, and upon a subsequent change in the circumstances of the parties, may modify or change the decree in relation to alimony and custody of children as may seem just and proper and for the best interests of all parties. A suit for alimony without divorce may be brought, where the wife has been compelled to leave her husband on account of misconduct on his part justifying the separation. The disposition of the children is entirely within the discretion of the court, and the custody may be given to either party or may be taken from both and given to a guardian, if it can be shown that neither parent is a proper person to care for them. The best good of the child will be the first and most important consideration in determining to whom the custody shall be given.

When a divorce is decreed the guilty party forfeits all rights acquired by the marriage. [Se.] After a decree of divorce neither party can have any interest in the property of the other except that which is granted by the decree, and this applies to claim for dower in case of survival.

Marriages may be annulled for the following causes:

1. Where marriage between the parties is prohibited by law.

2. Where either party was impotent at the time of the marriage.

3. Where either party has a husband or wife at the time of the marriage, provided they have not continued to live and cohabit together after the death of the former husband or wife.

4. Where either party was insane or idiotic at the time of the marriage. [Se.] If a person marries who has a husband or wife living such marriage is absolutely void. In case of absence of the husband a presumption of death does not arise until he has been absent seven years without intelligence concerning him. Where a party is insane or idiotic, and is therefore incapable of consenting, a marriage with such person will be void. When a marriage is absolutely void by law, it is not necessary to bring an action to annul it, before contracting a subsequent legal marriage.

A petition shall be filed in such cases as in actions for divorce, and all the provisions of this chapter shall apply to such cases except as otherwise provided. [Se]

When the validity of a marriage is doubted, either party may file a petition and the court shall decree it annulled or affirmed according to the proof. [Se]

When a marriage is annulled on account of the consanguinity or affinity of the parties, or because of impotency, the issue shall be illegitimate, but when on account of non-age, or insanity, or idiocy, the issue is the legitimate issue of the party capable of contracting marriage. [Se]

When a marriage is annulled on account of a prior marriage, and the parties contracted the second in good faith, believing the prior husband or wife to be dead, that fact shall be stated in the degree of nullity; and the issue of the second marriage, begotten before the decree of the court, is the legitimate issue of the parent capable of contracting. [Se.]

In case either party entered into the contract of marriage in good faith, supposing the other to be capable of contracting, and the marriage is declared a nullity, such fact shall be entered in the decree, and the court may decree such innocent party compensation as in cases of divorce. [Se.]